From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. We received a “press release” from a law firm notifying the public of a breach of protected health information. I don’t know if this is a new ploy or what. I don’t remember ever receiving a press release by certified mail under the pretense of it being a legal notice. Is this something that we are required to run, and if so, should it run as a legal notice?

A. I don’t think you are required to run it as a legal ad. The notice is required pursuant to federal regs (s. 164.406) and it can go to any “prominent media.” Further, this is not a legal notice under Florida law that requires an affidavit of publication and must run at certain “lowest commercial” rates. On the other hand, it is similar to a legal notice. You could run it at your standard legal rate but you are not required to do so.

Q. We have received a demand from a reader that we take down a mugshot and threatens a lawsuit if we do not. I want to confirm that the law they reference does not apply to the media, correct?

A. Yes, that is correct. I read the statute as only applying if the publisher “solicits or accepts payment to remove the photos” or its “primary business model is publishing and disseminating arrest booking photographs for a commercial or pecuniary gain.” If you do not fall within these categories, which your newspaper should not, the section (s. 901.43(5)) will not apply to you.

Q. Good morning, our reporter was at a local political party meeting last night where part of the agenda dealt with expenditures our county clerk had made to the local party and included a packet of materials detailing those expenditures. Then, when the “business meeting” started, they asked my reporter to leave, which he did. Later, some other people at the meeting complained that the reporter should have been allowed to stay. Did the party have the right to kick out a reporter? Can we publish info. in the packet without getting the person divulging the info. in trouble?

A. Regarding the meeting, meetings of political parties are not subject to the Sunshine Law, so they can close the meeting. Regarding the packet, did it contain materials prepared by a government official or agency? If so, you can rely on such official public documents and will be protected by the “fair report privilege” so long as you make clear that the document or statement was your source, and fairly and accurately use the source.

On the other hand, if the material was prepared by the local party or private person, then it would not be a public record and you wouldn’t have the fair report privilege to rely upon.

Further, If the packet is a public record, you can report on it without saying who gave it to you. Whether the person who gave it to you could face any consequences depends on whether the document is confidential and exempt from the public records act, which is unlikely.

Q. We are having a debate as to what is required for an affidavit to be accepted. The statute (s. 50.041) talks about pasting a “clipping” of the ad but also says you “alternatively” can provide “the affidavit….in electronic rather than paper form.” By “electronic” we have taken this to mean that the affidavit can be generated from our ad system and on an 8.5 x 11 piece of paper, the left side is the affidavit and the right side is the ad. They are printed, signed and then mailed. Is this okay as some folks believe that we still need to provide the actual clipping.

A. We reached out to other papers and they agree that the clipping or electronic image can appear in the white space on the right side of the affidavit. If the notice requires a newspaper clipping (tax deeds, public sales, etc.) the paper would cut/paste the clipping and place it on the right in the white space. If the notice goes electronically, the image of the notice can appear in that space instead of the clipping. Papers use a jpeg image of the notice to adhere to the white space on the notice.

Q. We have been approached by a young man who is interested in doing some sports writing for the school where he attends. He is 16 years old, and we’d like to possibly use him as a sports correspondent.
Do you see any problem with this? Would we need to get his parent’s permission?

A. The company can employ 16-year-olds so long as it complies with employment (FLSA) laws (minimum wage, overtime, number of hours per week, etc.). While parental permission is not required, it probably would be a good idea to keep the parents in the loop with some form of consent.

Q. We have an advertiser who has threatened filing a lawsuit based on an ad we rejected. If pressed, how much do I have to answer about my reasons for rejecting this ad for publication? We had a variety of reasons, some of which were based on legal advice you provided, but I’m wondering if I have to get specific if pressed during this call, or may I simply repeat that I elected to not run this advertisement?

A. I think less is best. I would advise against disclosing any communications where lawyers (me or anyone else) were involved. You might also be able to assert the journalist’s privilege but I will leave that to your own counsel.

Q. Do you have the latest law related to medical marijuana advertising and digital marketing?

A. Yes, the general rule is that if the ad will be placed online, the online version will need approval from DOH. s. 381.986(h)2., F.S. Your dispensary clients should have a better idea about the preapproval process since they should be having the interaction with the agency as a licensee. We have also created a best practice memo on various questions relating to medical marijuana advertising that might be helpful, including if the ads are coming from physicians as opposed to the dispensaries.
Finally, I have some disclaimer language that may be advisable if you need those.