From the Legal Hotline (1-877-NEWS-LAW)
Q. A topic of discussion came up in the office and we could use your help making sure we get it right. Here’s the scenario. A subscriber lets their subscription lapse. A paper is sent to them for some time while sending past due notices. Can the newspaper legally collect on the time that papers were delivered when the subscriber does re-subscribe? Or does the new paid subscription start from day payment is collected, and the past deliveries are on the house?
A. I would argue that if the subscriber resubscribes, in doing so, he or she implicitly agrees (or at least has notice) to pay for issues that have been delivered in the past because they were provided with past due notifications. In other words, they were receiving your product knowing that it was not paid for. So, I think you could bill them for the past due period. If they complain, you could then decide to give them a credit or not.
Q. We were recently made aware of an “emergency meeting” our town is holding tonight. However, the only item on the agenda is a “special election.” When we called, we were told an election allegedly wouldn’t be taking place during this meeting, but rather only a conversation about a special election would be taking place. We were wondering if this is something the town would have to publish in the newspaper, or if they could get by with just posting it on their door and website? We were not notified by the town, but rather a resident.
A. Section 100.342 relating to “special elections and referendums” was recently changed to allow “special election” notices to be placed not only in the newspaper but also, as an alternative, on the county website set up under Chapter 50 or the supervisor of elections website. So, assuming this is the correct statute for this election, I don’t think a newspaper notice is legally required for special elections if the other notice is provided. Further, I don’t see any formal statutory notice required for a “conversation about a special election” at a town meeting.
Q. We have another issue with a person wanting us to remove a photo we published of him. that has been “posted on the Google search results under [his] name.” The image in question is associated with an article titled about a black-tie event at a local gala. The person, citing cases, requests removal of the image “from any and all Google Search results associated with [the person’s] name.” He says distribution is in violation of his right to control the use of his image and privacy rights and it presents him in a negative light, damaging to his personal reputation.
We replied saying per company policy, we do not alter our content once it is published. Exceptions include factual errors and the like. Is it better to respond or just ignore it. Also, I’m not familiar with the cases he mentions as precedent. Any advice is greatly appreciated.
A. There is no legal requirement to remove photos from the newspaper website you control so long as they are accurately depicted and do not raise privacy issues. The case law I am familiar with is for the most part supportive of this position. Nevertheless, you do have the editorial discretion to take the photo down as a courtesy or for other reasons, if you wanted.
Q. Our county commissioners recently passed a newspaper delivery ordinance thatincludes two big changes. The first is that the owner or occupant of a property can request delivery of the free material to stop. If not, we would be subject to the litter ordinance. We already provide an opt out to those receiving the paper, so that is not our primary concern. Our biggest concern is the second change, which, if I’m reading it right, states we have to deliver within 3 feet of a mailbox. We feel that it is unlikely that our carriers can meet that standard, so it leaves us in a tough position in a hurry. I was curious what your opinion is on this new ordinance and if we would have a good case in challenging it? Or have they done just enough that it would be an uphill battle for us? Below I’ve included some bullet points from the ordinance and background information. As always, thank you for any information you can provide. We always appreciate it.
From the ordinance
Printed matter shall be placed only within a permanently installed appurtenance to the premises designed and designated for the receipt of such printed matter, or if there is none, it shall be placed on the ground or floor at a point beneath the place where such premises receives its mail or within a three-foot radius of that point.
It shall be a violation of this article when unsolicited printed matter is intentionally delivered to a private premises after the owner or occupant of said premises has served a stop notice on the distributor.
Rationale
The proposed ordinance serves a valid public purpose as unsolicited newspapers, handbills, advertisements, or other paper materials thrown on lawns, driveways, rights of way, or porches, are blown around, and can cause unsightly littering, the clogging of storm drains, damage to waterways, and decrease the aesthetic quality of neighborhoods.
A. The changes will probably make it harder to challenge. If you did challenge, the argument would be that the “permanent appurtenance, or if none, beneath or within 3 feet of the mailbox” restriction imposes substantial costs on the distribution of newspapers. Specifically, the opt-out provision in the county ordinance allows regulation in a narrow way that doesn’t unduly burden distribution. However, further barriers (such as delivery in (or around) a mailbox, on a porch, attached to the front door, etc.) would be too costly and unconstitutionally restrictive. In other words, there should be some protection for unsolicited delivery in the driveway or lawn.
I did some quick research, and unfortunately, the one case I found that really dives into this situation was a 2018 Kentucky federal district court case that rejected those arguments. The court states that driveway or lawn delivery is not automatically protected, even if there is an opt-out provision. That case upheld an ordinance that was even more restrictive (it didn’t allow placement near the mailbox) than the one in this case.
I’m sure there are other cases that may be helpful, and you may want to get a more researched second opinion, but this one seemed most on point and was negative.