From the Legal Hotline (1-877-NEWS-LAW)
Q. I wanted to run this random question by you if you have time look at it. We have a situation where one of our newspapers may be writing an article about a phone call by a person that they know illegally recorded the call (no 2-party consent). They are concerned that they might be sued in defamation by this person who illegally recorded the call. In that event, could that person lie about the existence of the recorded call or its contents?
In other words, Florida law generally says it is a crime for a person to use illegal (1-way) recordings in court proceedings (such as contested divorce cases and child custody battle) but what about this situation where it would be used to rebut untruthful statements (defeat perjury) by the plaintiff who made the illegal recording?
A. I think the short answer is that yes, you probably can make a good argument that the illegally taped phone conversation can be used to rebut falsity/prevent perjury by the plaintiff that made the illegal tape. This position is discussed in the dissenting opinion to the per curiam holding in Brugmann v. State, 117 So. 3d 39 (Fla. 3d DCA 2013), where the judge explains why recordings made in violation of chapter 934 should be allowed in evidence to rebut testimony contrary to the evidence on the recording.
Q. We have an advertiser that has told us that we have incorrect information on our affidavits in Florida. They are requesting that we change our affidavit language so that the name of the paper is used instead of the company-owner. Are we not in compliance as we have it currently?
A. The form affidavit has been changed (and shortened) a couple of times in recent years. The latest one is found at s. 50.051. It doesn’t have to follow this format exactly but it should be substantially the same. It appears that the suggested change to paper’s name makes sense.
Q. Is it legal to link to factual Facebook posts in our website’s news content, for example, boat fires, car accidents, plane crashes, etc.? In other words, do we need permission from the FB poster that posts news content before the paper can link to the posts in their articles?
A. If the paper is linking to a FB post, there aren’t any real copyright concerns (unless the paper is extensively quoting from the FB post). Most posters would probably be glad to have traffic driven their way. I did reach out to Jim McGuire in Tampa. He said the only thing he would caution is that by linking to a FB post as the source for facts the paper is reporting, the paper is essentially vouching for the accuracy of the post. For example, if the poster displays photos of an auto accident and says that the driver of the red car was drunk, the paper might be making the same statement and could be open to a defamation claim if not accurate. So, caution is recommended.
Q. I know there are issues with online gambling ads in Florida. We got a quote request from a gaming network that wants to run in a few publications across Florida. Should the publications run this ad? In our discussions, it came up that there might be a law against it because of the agreement with the Seminole tribe. The website says it “is a mobile games community that lets you legally wager & win real cash in the US” and “each wager is infused with live horse racing to determine your payouts.” Can you let me know?
A. I’ve taken a closer look at this, and I would be leery of accepting ads from this website. I reached out to Daniela Abratt-Cohen with Thomas & LoCicero, and she explains that although horse racing is legal in Florida, online real money gambling is illegal (unless it’s through the Seminole Tribe). It’s a bit convoluted, but it looks like at least some of the games are actual casino games, so even if the winnings are tied to horse racing, she doesn’t believe users are actually betting on the horses. So, it appears that the website is primarily acting as an online casino.
Q. I have recently contacted my weekly newspaper regarding police mishandling and negligence. I have spoken to many professionals regarding next steps in investigating this case and all of them suggested reaching out to local media. I am not a Florida resident, so I do not have the knowledge to easily do this. When I google it, the weekly paper is the only site that comes up as an actual media agency.
I am further concerned that the media source I contacted does not seem interested in investigating possible negligence and falsifying documents by the police. I would think that that would be foremost in their list or priorities. In any case, I am hoping FPA can help direct me to someone who will take this case seriously or at a minimum, someone who will guide us through this process.
A. The only response I can give is to point you in the direction of your other local newspapers. You do not say exactly which police force should be investigated but I’m guessing it’s one of the Central Florida police agencies so please reach out to Orlando Sentinel, Daytona Beach News Journal, etc. and use their websites to find an appropriate contact. They have staffing resource challenges but as you say policing in a community is a core oversight interest of media including the local paper.