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

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

Q. There have been attempts by the local sheriff’s office to deny requests to view body camera footage citing an “active criminal investigation.” Is there any support you can provide to push back on that?

A. Yes, here is some research from an FAF intern that cites some case law that may be helpful. The basic finding is that there is no basis for a sheriff’s office or the state attorney to withhold the requested body camera footage.

— Body camera footage of an incident is not protected “information obtained pursuant to the investigation” into a misconduct complaint, nor is “compiled … in the course of conducting a criminal investigation” into misconduct; it is information existing prior to and separately from any such investigation(s), and does not become confidential/exempt because it becomes part of an investigative file. 112.533(2)(a); 119.011(3)(b). See Inf. Op. to Theobald (Nov. 16, 2006); State Attorney’s Office v. Cable News Network, Inc., 251 So.3d 205, 212 (Fla. App. 2018).

—Also, for a misconduct investigation to be considered active, conclusion must be in the “foreseeable future;” there is no such expectation with respect to the indefinite state attorney or JSO investigation(s) that involve body camera footage. 119.011(3)(d), 112.533(2)(b). See Mobile Press Register, Inc. v. Witt, 24 Med. L. Rptr. 2336, 2338 No. 95-06324 CACE (13) (Fla. 17th Cir. Ct. May 21, 1996).

—The refusal to release the body camera footage until the completion of investigation(s) is an overbroad application of confidentiality/exemption laws, contravening Fla. Stat. 119.15(6)(b) and Art. I, Sec. 24 of the Florida Constitution. See Tribune Company v. Public Records, 493 So. 2d 480, 483-484 (Fla. App. 1986).

Plus, the state attorney’s office can voluntarily release the footage at any point (as otherwise redacted as required by law) because the criminal investigative information exemption is only an exemption, not a confidentiality requirement. See 5 WFTV, Inc. v. The School Board of Seminole, 874 So.2d 48, 53-54 (Fla. App. 2004)

 


Q. I have a random question. Our newspaper provides a stipend to some employees including journalists for the cost of personal cell phones used in the course of their work. Do you think this creates any exposure for them regarding any tax issues?

A. For the employee receiving the stipend, my understanding is that they don’t need to do anything on their tax return. Cell phone stipends are a non-taxable benefit. For the company offering the stipend, it should be included in their operational cost to reduce their tax liability.


Q. Any further detail about what is considered a pop-up ad in medical marijuana advertising? We are getting pushback from an agency asking if digital display is considered an unsolicited pop-up ad. Do we have any definitive answer to this?

A. The below law (381.986(8)(h)) is the only guidance I am aware of. [The regulation that will flesh this out has not been worked on for several years but if finalized would be contained in Rule 64-4.022, Marijuana Treatment Center Advertising and Signage. ]

A medical marijuana treatment center may engage in Internet advertising and marketing under the following conditions: 1) an advertisement may not be an unsolicited pop-up advertisement, and 2) Opt-in marketing must include an easy and permanent opt-out feature.

There are many types of popups (bar, box, full-screen, slide-in, etc.) with many timing and action triggers. Given that pop-up ads come in a variety of forms, the above law can be read quite broadly to cover these types of “ads.” But whether the popups are “unsolicited” is another question. If the “digital display” popup is part of the newspaper’s content (just as is other forms of advertising), is it really “unsolicited,” that is, not asked for by the reader, such as junk mail? Arguably, it is not.


Q. Is a fictitious name public notice ad required to post in the area/county of the establishment? Or, can they use any newspaper in Florida?

A. It must be the newspaper in the county where the business is located–
865.09(3) states that “certification by at least one registrant that the intention to register such fictitious name has been advertised at least once in a newspaper as defined in chapter 50 in the county in which the principal place of business of the registrant is or will be located.


Q. In our county, a news aggregator has started up that mostly links to our stories and other local stories. But sometimes they post the entire article with just a link to the original, if they disagree with how that story has been reported. Is there anything illegal about what they’re doing? Any advice on how to handle it?

A. We reached out to Jim McGuire at Thomas & LoCicero in Tampa. He notes that copyright infringement is often a question of degree. Limited copying can constitute fair use, but more substantial copying often crosses the line into copyright infringement. Jim says:

Looking at the aggregators listed, it appears that both are doing similar things: copying headlines from other papers, copying photos from other papers, providing a very brief summary of the story, then linking to the original publisher. I think the copying of the photos is copyright infringement (assuming the papers in question own the copyright registrations for the photos). Typically, there is no copyright in an article’s headline, standing alone, so there is likely no copyright infringement for copying those.

The fact that there are aggregators in the real world who are engaging in conduct that likely constitutes copyright infringement doesn’t mean that it is okay. Rather, the original papers might be willing to live with the infringement if it is driving readers to their websites. Or, the papers might not have copyright registrations for the photos, and therefore are not demanding that the aggregators cease using them.

The problem for the newspapers is that (1) it is expensive to litigate these claims, (2) there is no guarantee of success, (3) recoverable damages are limited, and (4) the papers might not registering their works, which of course is a prerequisite to filing a lawsuit.

If the paper does not like what the aggregators are doing, it is still worth sending a demand. If nothing else, it ensures the aggregators are on notice. If the paper does eventually sue, it might be able to prove willful infringement, which could increase the damages recovery or perhaps lead to the recovery of attorneys’ fees.

You could send them a short letter/email requesting they stop. I have succinct language you might use if you let me know.