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

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

Q. I’ve seen editors and journalists come down on all sides of the issue of using online sources. Personally, I urge my crew to avoid grabbing photos from online sources unless we have obtained permission. Some editors suggest Facebook is essentially open for the taking when it comes to a person’s image or photos. What is the current legal thinking of grabbing images from social media pages? I think I know the answer, but it’s always better to be able to say: Our FPA attorney says:…

A. Generally speaking, photos on an individual’s Facebook page that are posted with a “Public” setting can be used by others. See Facebook policy: When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture). In that case, the paper could use the photo in a limited way. Otherwise, I think your policy about obtaining permission is a solid one.

Q. I am talking with a candidate running for county commissioner. He wants to secure front-page ads in the paper for three zones for mid-June until the election August. If he signs an agreement now to reserve that space for him….does he have to prepay the whole contract? State statute requires what? Please confirm.

A. I read Florida law to require payment for ads in advance. Specifically, the law says candidates must make payment “upon final delivery and acceptance of the service,” which means in the case of media services, payment is due upon placement of the ad for publication or at least when the ad is actually run, and not afterwards in the form of a payment plan. See 106.11(4) and Chapter 10, p. 30 of the Candidate Campaign Treasurer’s Handbook. https://files.floridados.gov/media/702477/candidate-campaign-treasurer-handbook-2020.pdf

Q. We are just beginning to run legal ads in our paper and we have a number of questions: How do we know if a notice is a Chapter 50 notice? How long must we keep them up on our website? Are public notices legal ads. Can you help?

A. If the notice is required by Florida statutes, it will most likely be a Chapter 50 notice that requires publication in a qualified newspaper, at the rate allowed by law, and a publisher’s affidavit will be required. Such notices are not just governmental action notices like delinquent tax notices and probate notices, but also privately placed ads such as foreclosures, storage unit liens, and fictitious names.

Regarding how long you keep/archive them on your site, there is no such requirement (unlike the FPA site, which archives them for 18 months). I would recommend some reasonable period long enough for readers to access notices in the near past but also taking into account cost and server space. While it is true that a person can always find older notices on the FPA site archives, I still think the intent of the law is to allow a person to look at their individual newspaper website just as newspapers have archived older versions of its print editions. But again, I think you have the flexibility to reduce the 18 months to what you think is reasonable.

As for the terms “public notices” and “legal ads”, these are used interchangeably. Some public notices, however, are not technically Chapter 50 notices and do not require an affidavit, etc. These are published usually by an agency to meet the Sunshine Law requirement for “reasonable notice.”

Q. One of our sales reps has an account with Shutterstock so she can download photos to use in a customer’s ads. She is not reimbursed (currently) for this. First, is that OK, and second, if so, can a photo from Shutterstock be used on a monthly magazine that the newspaper publishes as part of the newspaper?

A. If the rep. has an account with Shutterstock, I would assume that account has Terms of Use. I think they need to look there first. Shutterstock might be licensing some uses but not others.

Q. With the election season rapidly approaching, do you have any written guidance on political ad disclaimers, payment of ads, voting day rules,etc.

A. Yes, see our member resource page on our website or you can access the memos here and here.

Q. What is the latest on the Marsy’s Law appellate case regarding police identities?

A. As previously reported, the Florida Supreme Court accepted review of the lower court’s adverse decision siding with the police union to keep police officer identities secret if he/she meets the definition of a crime victim under ML. That case is still ongoing with briefing allowed by the parties and media as amici curiae. The Court had scheduled argument for August 31, but this has been moved to a later date due to a conflict and will be reset.

Q. I am a reporter and wanted more information on the new public notice law (HB 7049) passed last session. Can you help me with these specific questions?

A. Yes, see as follows.

How do you expect most local governments to handle complying?

Not sure because the law and specifically the option to place legal notices on government websites does not go into effect until Jan. 1, 2023. We do think that there are significant drawbacks to local governments using county website-notice only, including potentially higher costs that cannot be foreseen, conflicts, and increased liability or delay due to mistakes in notices and/or affidavits that the local government will be responsible for. We have a Q and A memo on our website that goes into further detail.

What impact do you think this will have on the public itself? As you know, the sponsors have said they think this will mean more people have access to notice, whereas opponents have said the opposite.

We think the government website option in the bill will reduce transparency and create confusion among the public. The aggregate floridapublicnotices.com site will no longer be a free central repository to citizens for all the notices (with the added benefit of free email pushouts). In its place will be a patchwork of notices strewn across 67 different county websites across the state. The public will suffer because official actions will surely be missed, ranging from increased taxes, school board policies, medical marijuana facilities, and a host of other actions that the public will want to know about and provide input. Such websites will be the perfect tool for local governments and agencies to lower the visibility of potential controversial actions they are considering. Far from furthering Florida’s longstanding tradition of government in the sunshine, the websites will reduce transparency.

It will also be costly to implement these websites, and they will need to start from scratch (whereas private sector newspapers already provide the necessary intake, oversite and proof and publication services). The bill says there must be a cost savings for governments to move to use web-only, but how can a local government know that before it proceeds with the website? What if costs of the first-class mailing and affidavit preparation—services required of the counties by the bill–in a few months or more rise to an untenable level? At that point, there will be no going back, as the horse will be out of the barn, and the public will be the loser, again.

And — I think I generally know the answer to this — but can you reiterate the Florida Press Association’s position on this?

Although the bill’s passage has been discouraging to those employees, vendors, and stakeholders who did the brunt of the work required of them under the prior compromise bill, we believe it is the public who will be the ultimate losers under the current bill if the website option is undertaken. Why is that the case? Because government notice websites authorized by the bill will result in conflicted notice; and as noted above, will provide less access by citizens to official activities; and will likely end up being more costly than the current system.