Legal Update: 2016 Year in Review

By on February 22, 2017

ONA’s Legal Affairs Committee was busy in 2016, weighing in on some of the biggest issues facing digital journalists. We joined over 30 amicus briefs, letters, and other official submissions to strengthen protections for newsgathering and publishing. These included issuing an official statement against the U.S. Department of Justice’s demand that Apple decrypt an iPhone used by one of the San Bernardino attackers; joining interventions in France and Canada to protest overly broad application of the “right to be forgotten”; supporting journalists who seek access to public records in states across the country; protecting the right to record police activity; and supporting a FOIA reform bill signed into law on July 4.

2016: A Year of Media-Law Trials

The past year saw several high-profile jury trials against media defendants in cases involving public figures or matters of public concern. Historically, media have fared well in such cases, but 2016 saw several jury verdicts against the media. Hulk Hogan (Terry Bollea) won a staggering jury award of $140 million — including $25 million in punitive damages — in an invasion of privacy suit against Gawker Media and several Gawker employees for posting portions of a sex tape involving Hogan and his friend’s wife. As we now know, the case was quietly bankrolled by tech billionaire Peter Thiel as part of a personal campaign to put Gawker out of business.

Whatever you think about Gawker or its decision to publish the video, the decision sets a dangerous precedent for all journalists and news organizations. Emboldened by the Gawker verdict, Hogan’s lawyer has initiated suits against other media outlets across the country, often naming individual journalists, freelancers, and even on-the-record sources in those suits.

In October, the Raleigh News & Observer was hit with a $6 million jury verdict in a defamation case brought by an agent with the state’s Bureau of Investigation. At issue was the newspaper’s coverage of her ballistics analysis and testimony in a trial. In November, a Virginia jury awarded $3 million to a University of Virginia dean in her libel suit against Rolling Stone and the author of the article “A Rape on Campus.” Of particular concern in the Rolling Stone case, the jury found the magazine was not liable for publishing the article in the first place – but imposed a $1 million judgment for posting an “Editor’s Note” explaining that it had subsequently lost trust in its main source, on the theory that the Editor’s Note was a “republication” of the original article. This could have serious consequences for journalists who publish online and update stories as additional information becomes available.

FOIA Gets an Update at 50

The FOIA Improvement Act of 2016 was signed by President Obama on the 50th anniversary of the original law, and our collaboration with the News Media for Open Government coalition was critical in the Act’s passage. While the Act doesn’t fix every issue journalists have with the federal law, it does make some important and beneficial changes, including:

  • a 25-year limit on agencies withholding documents under the “deliberative process privilege”;
  • requiring agencies to proactively disclose documents that have been requested and released three or more times;
  • and codifying a 2009 executive order that created a presumption of disclosure, requiring agencies to justify any withholding or redaction on the grounds that disclosure would cause “foreseeable harm” — and not just because the agency could find an applicable FOIA exemption.

What’s ahead for 2017?

As busy as 2016 was, we expect even more this year. We’ll be keeping an eye on the new administration’s implementation of FOIA and fighting for access to public records at the federal, state and local level. We will work with fellow organizations to support a free press and a well-informed public, and we will strongly oppose any efforts to prosecute journalists, compel them to reveal confidential sources, or chill important reporting through baseless legal threats. We would love to hear from you about the legal issues that are concerning you the most. Email us at legal@journalists.org and let us know how we can help.

Meanwhile, keep an eye on the ONA website to follow all of our legal actions in what we expect to be another big year for media law

Alison Schary

Alison Schary is ONA's general counsel. In her role at Davis Wright Tremaine, she represents and counsels clients on a wide range of issues in media and intellectual property law, including libel, privacy, copyright, newsgathering and First Amendment matters. Alison regularly defends clients against claims for defamation, privacy and newsgathering torts, and she has experience representing both plaintiffs and defendants in intellectual property matters. Alison also advises newspaper, magazine, website, television and book-publishing clients on pre-publication and pre-broadcast legal issues.