Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/56850
Page 4 March 1, 2012 Court adopts protections for anonymous posters T he Indiana Court of Appeals agreed with an amicus brief filed by the HSPA Foundation and others in support of anony- mous speech. The three-judge panel unanimously ruled that the First Amendment and Indiana's Constitution require a plaintiff in a libel lawsuit to meet certain tests before a court can force the disclosure of the identity of someone who anonymously posts a comment on a web- site. The Indianapolis Star had appealed a trial court ruling to turn over information that would have identified a com- menter on The Star's website who went by the moniker DownWithTheColts. DownWithTheColts sug- gested that Jeffery Miller, former chief executive offi- cer of Junior Achievement of Central Indiana, had diverted money from the agency into his personal bank account. Miller is suing several individuals and entities for libel and sought the identity of several website posters to add them to the list of defen- dants. Jan Carroll of Indianapolis law firm Barnes & Thornburg argued the appeal for The Star. The newspaper argued that Indiana's reporters' privilege (shield law) protected the identity of the poster. Judge Nancy Vaidik, who wrote the opinion, didn't like the argument, maintain- ing that DownWithTheColts wasn't a source of news for the newspaper and thus could not be afforded the protection of the shield law. Judges Carr Darden and Ezra Friedlander concurred. The justices did, however, agree with points made in the Amicus brief, filed by Lee Enterprises (owner of HSPA Hotline From the Palladium-Item (Richmond), The Noblesville Times, The News & Tribune (Jeffersonville) and The Times-Mail (Bedford). Q Act permits a hospital to disclose certain information if it maintains a "facility directory." Unless the patient objects, A the hospital can include the following information in a directory of individuals it's serving: • Name • Location in facility • General condition • Religious affiliation. Disclosures of informa- tion from the facility direc- tory may be made only to individuals who ask for the patient by name. Religious affiliation may be disclosed only to members of the clergy. The hospital isn't required to keep a directory, but I'm assuming most do to help direct people asking to visit friends and family. What are hos- pitals required to tell us about a patient? Do they have to tell us if a person is a patient? Do they have to tell us a person's condition? I need to know the absolute minimum that they are required to tell us. The Health Insurance Portability & Accountability Q A We apparently erred in the tim- ing on printing the budget for one of the Hamilton County libraries. Because of this, the library director says the library budget was cut. H has asked us for a letter saying that the mistake was ours and not his. He says the letter may help him get back some money in the budget. Will this create any liabili- ty for the newspaper? Appar- ently, we really did mess this up. I'm happy to help make it right, or at least better, if we can, but I don't want to step into something potentially worse. You're not the first newspaper to have a problem with the publi- cation of a public notice advertisement. There isn't a liability in admitting an error was made. I'd agree to write a let- ter confirming the error made because it can help restore funding from the state Department of Local Government Finance. Newspapers have agreed to this in the past without any repercussions. Q Fayetteville Observer's Platinum TV ad package exceeded revenue goal in less than a week! The newspaper has been given a copy of an email apparently sent out by the presi- dent of the local chamber of commerce that's newsworthy. We wanted to check on whether we could make a records request to see if the president has sent out simi- lar emails on other occasions. A A chamber of commerce is a private entity and not subject to the state's Access to Public Records Act, so there is no obligation by a chamber to turn over emails to the newspaper. Even if a chamber of com- merce is receiving funds from local government units for economic development work, it's probably on a fee- for-services arrangement, so the public money received won't push the chamber under the scope of the access law. of a plumbing contractor to be displayed in all forms of written or printed advertis- ing for services. It even has to be included Q A on all vehicles the plumber uses to provide services. Contact Steve Key, HSPA executive director and gen- eral counsel, with media law questions at skey@ hspa.com or (317) 624-4427. Are plumbers required to include their license num- ber in newspaper advertising? Yes. I.C. 25-28.5-1-35 requires the license number Key Points By Steve Key The Times of Northwest Indiana in Munster), HSPA Foundation and others and written by Charles Tobin of law firm Holland & Knight of Washington, D.C. The amicus argument before the court, made by Paul Levy of Public Citizen Litigation Group of Wash- ington, made the case that Indiana should adopt the test from a New Jersey case (Dendrite International v. Doe) that requires libel plain- tiffs to clear several hurdles before a court would unveil the identity of an anonymous commenter. That test, with a modifica- tion for Indiana law, was adopted by the Court of Appeals. Now a plaintiff will have to post a notice on the web- site where the comment in question was made notifying the anonymous poster that a subpoena had been issued to identify him or her. Then the court will allow the poster time to have an attorney step forward in his or her defense. The plaintiff also must identify the exact statements that are alleged to be libel- ous and present evidence to support each element of that claim except for one. The exception is showing malice. Vaidik reasoned that with- out knowing the identity of the person making the com- ments, the plaintiff would be unable to show malice. Indiana is one of the few states that require malice to be shown before a libel plain- tiff can prevail in a lawsuit Justice Continued from Page 1 The O'Bannon Sunshine Award, first awarded in 2005, honors an individual, group or organization demonstrating outstanding effort to protect and enhance open government in Indiana. "Some people think the press only reports the bad news – the one bad apple in a barrel of good public officials and employees," said HSPA executive director and general counsel Steve Key. "The Frank O'Bannon Sunshine Award honors that golden apple – those public servants or citi- zens who understand that our government should be trans- parent to the people it serves." The Corydon Democrat's nomination, submitted by pub- lisher Jon O'Bannon, included the following: Chief Justice Shepard has articulated the belief that newspapers and the judiciary have a symbiotic relationship. The judiciary needs the coverage of its operations and decisions to help strengthen its role as one of the three equal branches of government, each serving as a counterweight to the other two branches. Meanwhile, the press is reliant upon the judiciary to protect its newsgathering abil- ity through First Amendment- related decisions. If the court doesn't support the freedom of press, news- papers' ability to serve as a government watchdog could be severely curtailed. The chief justice has taken steps to make the workings of the judiciary more transpar- ent. Under his watch: • Media cameras are allowed Without publishing anything new, the Fayetteville Observer ad package created new, year-long revenue in just one week! Contact Advantage Newspaper Consultants today to learn more about creating NEW annual revenue with your existing core products. Ask us about our digital editions! 910-323-0349 | info@newspaperconsultants.com | www.newspaperconsultants.com in appellate courts, and argu- ments are webcast. • The Supreme Court has approved one pilot project allowing cameras in trial courtrooms and is considering a new project (approved since this nomination). • The Supreme Court updat- ed its Administrative Rule 9 to take into account issues raised by a digital environment. concerning a private indi- vidual involved in a matter of public interest. The plaintiffs also have to show that the balance of interests (plaintiff's right to protect his or her reputa- tion, for example) outweigh the interests of the poster (First Amendment rights, for example) before a judge could require a third party to reveal identifying information about the poster. The ruling not only protects the anonymous speech rights of Hoosiers but takes newspa- pers out of the middle of the legal fight. Newspapers will not have to choose whether to turn over a poster's identifying information or take on thou- sands of dollars in legal fees to defend the poster's First Amendment rights – as The Star did. Steve Key is executive director and general counsel for HSPA. Service Continued from Page 1 in general. • Demonstrated service in the local community that reflected positively on its newspaper. Jones more than fits the criteria, said Tim Timmons, president of the HSPA board of directors, when he announced Jones' award. "Sometimes a person shows up in leadership roles in so many different organizations, one takes it for granted he or she will be involved in the next large project, board meet- ing or brainstorming session," Timmons said. "You name it, Max has done or is doing it." Decades ago Jones was an original member of the HSPA Newsroom Seminar Committee that plans the training ses- sions for the event and makes the rules for the Better Newspaper Contest. He was off the committee for a while and then came on again and served as president for two years. He's still a reli- able member, Timmons said. Active in a number of journalistic organizations in addition to HSPA, Jones participates in the Indiana Associated Press Managing Editors and is a past president of the group. He belongs to the Freedom of Information com- mittee as well. He is currently presi- dent of the Indiana Debate Commission and a board member with the Friends of Ernie Pyle, leading the charge to save the museum in Dana dedicated to the famed World War II correspondent. Jones also has been a long- time member of the Student Publications Board at Indiana State University. He has been a member of the Tribune-Star newsroom staff for 26 years, the past 11 as editor in chief. Jones joined the Tribune- Star in 1985 as regional editor and five years later was pro- moted to editorial page editor, a position he held for 10 years before being named editor.