From the Legal Hotline (1-877-NEWS-LAW)
Q. I have a question about agency audio records meetings. The audio recording is used to produce Robert’s Rules type minutes so there are no details – just who is present, subjects on agenda, motions made, results, etc. Once the minutes are prepared, can they destroy the audio recording immediately?
A. An agency is authorized to tape record the proceedings, but if it chooses to do so, the Sunshine Law also requires written minutes. AGO 75-45. Similarly, while a board may archive the full text of all workshop discussions conducted on the Internet, written minutes of the workshops must also be prepared and promptly recorded. AGO 08-65. Moreover, the tape recordings are public records and their retention is governed by schedules established by the Division of Library and Information Services of the Department of State. Accord AGO 86-93 (tape recordings of school board meetings are subject to Public Records Act even though written minutes are required to be prepared and made available to the public).
Q. Any chance you could give a draft op ed a quick read? I’m having a bit of a throw down with my young staff over whether this is libelous as an op-ed piece. My problem is that we are stating FACTS about an individual who, though not named, is easily identifiable. Facts that we have made no attempt to confirm. Your thoughts? (Otherwise, I love the piece and her points.)
A. As you indicate, factual statements do not automatically become protected opinions just because they are contained in an op-ed piece. Further, the plaintiff need not be specifically named if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. To be actionable, a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her.
Here, the piece does assert facts about the way the person behaved and what he said that reasonably identifies the person. However, that said, are those facts defamatory? If the paper can confirm the factual statements you identified, then the piece is defensible (although this is not to say the subject would not try to sue). That’s always a risk.
Q. We have a person who wants to run a legal ad for constructive service in a child custody modification case for 30 days or four consecutive weeks. The ad relates to modification of timesharing that has been filed in a case in South Florida and provides information on the courthouse, judge, and contact information. Does the ad pass muster in your opinion? I’m thinking I need a Notice of Action
A. This is actually a complicated area of the law. I think in general newspaper notice (constructive service) can be used in custodial time-sharing change matters. That said, just googling this area, it appears that a person seeking constructive service must, as you note, complete a “Notice of Action” form and deliver this form to the Clerk of Court. The Clerk will need to sign it and apply a court seal to the Notice of Action prior to having the person submit it to the newspaper. I don’t think that is the process being followed here but maybe this person has other information or there are other facts that allow this. We can’t provide legal advice to the person.
Q. Our newspaper is an FPA member, and we have a legal question. A recently created website in our city has started posting our newspaper’s photos, headlines and decks without permission. It looks like the website started as an aggregator but is now also posting its own material, calling itself a news website and running ads from local businesses, placing it in competition with our website. Clicking on our photos or headlines on this other site does link the reader to our site but the other website does not credit us on its homepage, where our photos/headlines are appearing, so casual viewers may assume that this other site’s staff took the photos/wrote the stories.
Would this website’s use of our material seem to constitute a copyright violation? If so, what are our best options for halting it? We have not yet initiated contact with this website’s owners and are wondering if a cease-and-desist letter or something similar would be warranted.
A. I think a c-and-d letter makes the most sense. As you know, unless the paper actually registers its copyrights, it cannot sue for copyright infringement, but the website needs to be put on notice that its copying is not authorized. You could send them a short letter/email requesting they stop. Here is succinct language you might use. (If they continue to use your material, send the language via express mail, return receipt requested.)
This newspaper is the owner of the copyright in certain published articles and images as well as the trademark and design of certain marks, which it has been using since _______.
It has come to our attention that your company has been using such material in connection with one or more of your websites. In particular, the website at _____________ has started posting our newspaper’s photos, headlines and decks without permission.
The use of this material in this manner constitutes copyright and trademark infringement. Further, simply rewording the articles in a non-transformative way or linking to our site still constitutes infringement. The consequences of such infringement are significant. We hereby demand that you cease and desist from using, copying, or displaying the newspaper copyright material, including articles (reworded or otherwise), images and marks. Please respond to this email by _________ to confirm that you have ceased using this material.
We would prefer to avoid litigation over this matter but reserve all rights and remedies available under law.
Thank you for your attention to this matter.