Printed Matters

This was written a couple of months ago for a journalism course, but it seems to have new legs as Fantino and the gang held another “naming and shaming” this week.

Online news archives: The business case and the legal uncertainties

As media companies race to post breaking news – and practically everything else they have published – on their websites, legal questions swirl around the old stories that are online.

Known as archives, these collections of stories and features can be searched and the stories in them brought forward with ease. Unlike their dustier relatives -print archives – web archives keep old news a mouse-click away.

While good for readers used to Googling to get information they want, and good for news outlets looking to reach more readers, online archives exist in a legal no man’s land.

This, media insiders said, is about to change – and soon.

The ease with which someone can call up and view an old crime article online could let a news company run afoul of contempt law, said media lawyer Tony Wong. A partner in a Bay Street law firm, Wong represents media organizations such as the Canadian Broadcasting Corporation and the Toronto Star.

“(Older) articles might include a criminal record or other prejudicial information that was OK to publish at the time of arrest, but would be in contempt closer to the trial,” he said. “Say you do a set-up piece for a trial and you link back to older articles that were published at arrest time in a ‘Read More’ situation. You’re effectively republishing the article by putting that fresh link in and bringing the older stories forward again. And I think the courts would see it that way.”

Ethical concerns have arisen, too. Just this September, the New York Times stopped charging for its archives. In an article dated Aug. 26, 2007, Times public editor Clark Hoyt wrote about what this means for Times editors.

“People are coming forward at the rate of roughly one a day to complain that they are being embarrassed, are worried about losing or not getting jobs, or may be losing customers because of the sudden prominence of old news articles that contain errors or were never followed up,” he wrote.

The old articles, previously restricted to TimesSelect subscribers, now appear in Google searches.

Closer to home, Mary Sheppard is executive producer of online news for the CBC. She recalled a phone call from a 25-year-old woman desperate to have a story removed from the CBC’s online archives. A story on gambling addiction and youth by the national broadcaster featured the woman when she was 19, and the video was still online. But she had met a man she planned to marry and dreaded him finding out something sordid about her past.

The video was in an old format and would not have survived the next server update anyway, Sheppard said, so she saw little harm in removing it a few months earlier and saving the woman some grief.

“We take deletion very seriously,” said Sheppard. “But in that woman’s case it was easy to make the decision to delete.”

Most times the decision is not so simple. Good reasons exist for doing archives and keeping them intact, yet unaddressed legal and ethical concerns simmer below the surface. Media lawyer Wong points out this tension with a warning.

“Websites are becoming an increasingly important part of the media business,” he said. “And although nobody wants to be the test case, they (media organizations) will all be pushing the limits… Like it or not they’ll have to address this in court eventually.”

A columnist who writes about the web and related technology for the Globe and Mail echoed Wong’s warning. Mathew Ingram said the speed with which journalists put stories up on the web, compared to the process they use to get a story ready for a traditional print publication, increases the risk of contempt or defamation.

“I have a feeling we’re going to see these things tested,” he said. “There are fewer eyeballs when (a story) is being put up, and more after it’s put up.”

The CBC’s Sheppard agreed that legal tests may come soon, and suggested the legal system should change.

“I can’t be responsible for a juror going in and doing a Google search,” she said. “The justice system has to catch up with the modern world if they seriously think that today you can actually block everything out, everything that’s happening. It’s just not possible the way it was 10 years ago.”

Why, if archives are risky, do news organizations bother with them at all?

The answer falls into two broad categories. First, archives can make money for their operators. Second, editors see doing archives as part of their responsibility to give readers enough information to make up their own minds.

In 2003, one of this article’s authors (Burden) was hired as a website consultant by a community newspaper in Parry Sound, Ont., to help increase the amount of traffic to its website. Burden began storing all stories in a database that allowed older stories to be read online. In short, he started an archive.

Within a year, ParrySound.com had grown its number of daily visitors by 30 times to about 10,000 per day. In fact, the site claimed a greater number of daily visitors than its print source could claim as subscribers, attracting more readers each day than the town’s 6,500 population.

The new visitors came from search engines such as Google and Yahoo. News stories are chock full of keywords, the things search engine spiders like to eat up and digest and spit back at people who are searching for things online. So the old stories got hits from people located all over the world.

In October 2004, Wired magazine managing editor Chris Anderson explained the business model at play in an article called The Long Tail. The name comes from the appearance of a graph that plots book sales at Amazon.com. While a few top-selling books stand out at the beginning of the graph, the majority of books sold at Amazon.com are in the long tail – the hundreds of thousands of older or less popular titles that only sell two or three copies a year, but, added up, outsell the thousands of current best-sellers that can be stored in physical bookstores.

But can restricting archives, like the Globe does by charging users to access them, make them less risky? Yes, according to Ingram, who works at the Globe. He said the Globe’s choice to keep archival material behind a pay wall stems from a business decision rather than any concern over legal issues. But he said that differences in legal risk probably exist.

“Obviously, if you’re exposing more stories to people (by using a Google model), you’re increasing the risk, especially in terms of damages,” he said.

Aside from the business reasons, some people claim historical usefulness and journalistic responsibility as the main reasons to do archives. Tony Wong pointed to the historical value of archives.

“When you go back and edit or remove stories you’re changing the public record,” Wong said. “But we want to know, for historical reasons, how things were recorded at the time. It’s artificial and it’s altering history (to edit archives).”

He drew an analogy to the print archives of Southern U.S. papers.

“Can you imagine going back into their archives and replacing all the n-words with references to ‘the kindly black gentleman?’” he said. “Those articles sit in dusty archives for years, but they’re there when we need them for historical purposes.”

Mary Sheppard claims that the CBC has a strong “duty of care to the audience.”

“It’s journalistic policy,” she said. “It’s forthright good journalistic policy.”

News archives, she said, are important to the historical record. This is why deletion policies are of such importance to any media outlet.

Sheppard and the CBC have three reasons why they might delete a story from the news archives. The first, she said, is if they got a story seriously wrong, meaning they got more than just a number wrong.

She gave the example of a case in Alberta where police named a man who was going to be charged and the CBC quoted the police in its story. Afterwards, police revealed that they had gotten it wrong, and charges were never laid. The story was removed from the website.

“The second,” Sheppard said, “is that sometimes we find out about publication bans after the fact. That’s just the way it is.”

Even if something is said in open court, the judge may later decide that there should be a publication ban in effect. Sheppard must then remove any of that published material, because the courts may view a person calling up an old article as a fresh publication on the part of the CBC.

“There are some who believe that when you press enter on your keyboard, that you are republishing,” Sheppard said. “I’m not one of them.”

Neither is Wong.

“If every click was a fresh publication, the statutory limitation period for serving a libel notice would never expire,” he said. “A plaintiff would just have to go click on the story and say, ‘there, it was just published.’”

While the first two policies are fairly straightforward, the third policy Sheppard discussed is more controversial.

“The third policy deals with personal safety, jeopardy of a person’s life… This can extend to their well-being, too,” Sheppard said.

According to Sheppard, if someone can prove that the archived article causes them serious stress – such as may lead to a serious mental breakdown – then she will remove the article.

“For example,” Sheppard said, “suppose I was accused but never charged, or I was charged but found not guilty, or I was found guilty but I did all my community service and this is causing undue hardship in my life.”

She said that it is very important to follow a story until the end and that this is where the CBC usually gets into trouble with its archives.

The story of James LeCraw shows the importance of following a story through to the end. LeCraw was accused of possessing child pornography, but the charges were later dropped. According to a documentary on this case by Kellie Hudson of the CBC, LeCraw never got over these allegations, which, in a note he sent to his brothers just before his death, he said destroyed his life. He killed himself on July 19, 2004.

Hudson interviewed LeCraw’s brother, Bob LeCraw, and asked him what he thought about what had happened to James.

“All you had to do was a search for ‘James LeCraw’ and it would come up on the Internet that these charges were laid and all that people see is that in the headline,” he said. “They never see anything else that’s not available on the Internet (such as) that the charges were dropped.”

According to Hudson, many news outlets covered a well-orchestrated press conference held by Toronto Police, on April 16, 2003, to name those accused of possessing child pornography. All of these outlets had stories naming LeCraw on their websites. None of them carried the story when his charges were dropped.

Wong said that journalists have an obligation under libel law to follow up stories about criminal charges if the charges are dropped, there’s an acquittal, or a finding of innocence. But he warned of a trick Google can play on archives.

“Say you report on charges being laid, and then you do a follow-up saying the charges were dropped,” he said. “Google is likely to pick up the bigger story, and not the shorter follow-up.”

The ‘virtual rap sheet’ becomes more of an issue for people as time goes on. Employers can easily do a search to find anything with a potential employee’s name on it to see what they have done in their past.

A virtual rap sheet destroyed James LeCraw’s life, his brother said. It was not until after his death that websites began to write new stories about him, changing his reputation from accused pervert to victim of police publicity methods.

Potential jurors can access a virtual rap sheet, too. When a person stands trial, the jury must not know their criminal record. People should be tried for what they have done, not for who they are, to paraphrase Dean Jobb in Media Law for Canadian Journalists. What stops a potential, or even an actual, juror from doing a simple search on the Internet to find out what an accused person did prior to their arrest?

Sheppard pointed out B.C. pig farmer Robert Pickton’s recent trial. News outlets throughout the United States had stories related to the Pickton trials on their websites despite Canadian publication bans.

This has been happening at least since 1993, during Karla Homolka’s highly publicized murder trial, and before the web existed as we know it today. Mathew Ingram remembered going on AOL and bulletin boards and getting information about the Homolka trial from sites in the States.

“It’s all about information flow – how do you control the flow? Geography is no longer as important,” Ingram said.

But media lawyer Tony Wong thinks the effect of virtual rap sheets on jurors cannot match the impact of traditional media reports.

“You’ll never convince me that something dredged up from a Google search has the same prejudicial effect as a front-page article in the Toronto Star,” he said. “An old link from Google just doesn’t have the ability to reach as many people.”

Nonetheless, Wong, Sheppard and Ingram echoed the same message: archives are in uncharted territory with no precedents set in courts. That will change soon, and the courts will likely modernize to reflect changes in technology.

As Ingram said, “Why shouldn’t the jury know about criminal records? Maybe it’s an antiquated concept. We have to adjust to a world in which information flow is really, really easy.”

In the meantime, while we wait for the courts to clarify some of these issues, some general advice may help news companies avoid problems with their archives.

First, news outlets might consider keeping their archives behind a pay wall, charging users for access. This effectively keeps Google out of the picture and reduces the risk of contempt or a virtual rap sheet since fewer people will be able to see older crime stories.

However, pay archives buck the trend as news companies including the New York Times – and the Wall Street Journal, recent reports suggest – move in the opposite direction. They think they can get more ad revenue by opening up their archives than they have been able to generate in subscription fees.

Second, news outlets should link forward in a prominent way from older stories to newer stories or follow-ups on the same subject. This would help to ensure that someone who happened across an old story reporting charges would also see the latest information on, for example, the acquittal. But Tony Wong cautioned against linking the other way, from newer stories to older stories, since the courts may view the bringing forward of the older information as a republication, and possibly in contempt.

Third, news organizations should be sure to follow up on crime stories.

“My advice would be that if you can’t commit the resources to covering the acquittal, then you may want to consider whether you should be covering the charges in the first place,” said lawyer Wong.

Finally, news organizations should have a clear editing and deletion policy that editors – and the public – can refer to when tricky deletion requests are made. It might be comprehensive, like Mary Sheppard’s three-part deletion policy. Or it might be as simple as refusing to alter the public record at all.

As one editor at the New York Times put it, removing anything from the historical record would be “like airbrushing Trotsky out of the Kremlin picture.”

Written Fall ‘07 for Journalism Law & Ethics