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Legal Quandaries for the Writer

Writers write. They also spend time in jail or courts. Occasionally they are murdered. It is best when they write.

An interesting question from Steve: "I have a contract with a large media company in the US. I work out of London, cover meetings and write dispatches from them. I take a lot of notes and get a lot of material but my contracted company doesn't want to use all of it. Is it OK for me to take those notes and interviews and make new articles to sell to new markets?"

I couldn't give him legal advice although I did say that all freelance handbooks I've read advise freelancers to collect research for more than one assignment. The contract or freelance writer owns the research, the writing, the interviews unless he's foolishly signed it all away in an "all-rights" or "work-for-hire" contract.

There are a lot of legal and ethical questions in writing and publishing. What follows is meant to inform writers on subjects that can prove prickly if you are ignorant of them.

In the resource box below I have put a generous supply of links that help define and explain the terms.

Writers can stay out of hot water by using common sense. Pay attention to that red flag as it stands erect on something you are about to write.

Don't be the reporter who got the Weekly Standard in Dutch in 1997 when he interviewed disreputable sources for a story on Deepak Chopra and ended up costing the Standard a lot of money and embarrassment.

Or Drudge who ended up with egg on his face over the rumor of the Kerry affair.

Writers, whether they are on staff or freelance have the same responsibilities as those who publish them. Magazines, especially, are so paranoid of law suits that editors will usually cross out references in stories that send up any red-flag. It's a narrow road sometimes. After all, journalism is dealing with bad people, bad companies, bad institutions all the time in a contentious society. A good magazine is running the risk of pissing off someone at any given time.

Libel and plagiarism are two legal thickets that can get a writer in trouble. There have been a rash of book writers, famous scholars, newspaper reporters, and others whose reputations have been damaged by, especially, plagiarism. The other difficult legal quandary is when the courts give a reporter the option of revealing their source or go to jail.

I certainly recommend the media law blog to anyone interested in these questions.


A crucial battle is building between the traditional "shield laws" writers have enjoyed in the past and the new post-9/11 world. The courts are more repressive, and more concerned with "get the guy" than with the public's right to know.

Contempt of court is landing more journalists in jail now than ever. In the last several decades 14 writers have been jailed; in the last couple of years there have been seven arrests. There is a definite chill in the air.

The right to know is becoming a kind of idealism the courts nowadays tend to brush aside.

"These are journalists with national stature working for mainstream, well-respected publications and broadcast entities ... so I don't think they're going to be intimidated into revealing their confidential sources," said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press.

A recent case involves Jim Taricani, TV reporter in Providence R.I. He's been a reporter for thirty years. He ignored a court order to reveal who gave him a tape damaging to a defendant in a political corruption case and was found guilty of criminal contempt. He was sentenced to a six-month house arrest.

The statement he made after being found guilty underscores the real significance of all this. "I wish all of my sources could be on the record, but when people are afraid, a promise of confidentiality may be the only way to get the information to the public, and in some cases, to protect the well-being of the source."

Confidentiality is the cornerstone of the public's right to know. More media types are alarmed over this than they have been over other hot subjects of late.

The outbreak of these cases has prompted a great deal of interest in the shield laws.

This link contains many resources on the shield laws.

Judith Miller is another case. She was given information about a leak in the Bush Administration's outing of a CIA operative.

The court demanded the source, she and her co-defendant refused--they will probably spend some time in jail. What makes this more disturbing is that Miller never wrote an article on the information she had; she merely conducted an interview in anticipation of writing the article.

Most writers don't have to worry about this problem. I doubt if food writers or copywriters are going to be held in contempt for making a secret family recipe public. But if a bitter rivalry broke out between two chefs and one was found murdered and a third party went to the food writer and told her what happened and she wrote the story, then she may be forced to reveal the source or go to jail.

We all need to worry about the effect on whistle-blowers and others who will hesitate going to journalists if the shield laws don't work.

Deep Throat remains the most famous concealed source in our time and Bob Woodward still refuses to reveal who he is because "the man told a lot of lies to people he's closest to..." So, we won't find out until the man leaves the Earth.


"Writing the truth, and being ready to prove it to be the truth, is the only absolutely solid way of dealing with libel actions." --John Morrish, Magazine Editing

Media lawyer Kevin Goering says, "If it's something you wouldn't want to have said about you, it's probably defamatory."

Libel is far more a concern for writers and editors than contempt.

One thing the last few years have proven is that juries like to award people who have been libeled by writers and publishers with lots of money. Retraction goes a long way to minimize the damage but it doesn't prevent a lawsuit from occurring.

In the AP Stylebook and Briefing on Media Law it is pointed out that most libel suits come from small, seemingly innocuous notices about court cases, implying someone is a criminal. And most of these suits, as the Associated Press outlines it, occur in the "publication of charges of crime, immorality, incompetence or inefficiency."

According to The Magazine from Cover to Cover, writers are negligent if they don't contact the person being defamed, fail to verify information through excellent sources, or a disagreement occurs between the writer and the source over what exactly was said.

Lately it has been the "right to privacy" that writers and journalists have to be aware of. Violation of the right to privacy can be an actionable offense and includes trespassing onto a source's private property, among other things. Written consent is always the best policy if you are not certain.

Bunin and Beren in The Writer's Legal Handbook suggest that the best defense to libel action is simply to scrutinize the story. Does anything in the story point to associating a person with something deemed "bad?" If so, look at it carefully, look at the facts that have been asserted and only include it if you are absolutely certain of that fact.

Messing up at that stage could be very costly to your reputation and pocketbook.

If you are a reporter and cover a meeting in which a public official makes a libelous statement, then report it, you are not held accountable in most cases. It is called "privilege defense," and assumes you are fair in the reporting of the public meeting.

If you criticize someone or something in an article you need to give all the reasons why you are criticizing him or her or the restaurant or the museum. Why did you come to form the opinion you did? If that is written out then you have a fair comment or criticism defense against libel.

According to the Columbia Encyclopedia businesses account for about 70% of all libel lawsuits against the media.

Journalists rightly argue that suits of this nature can have a very chilling effect on the ability and desire to find out the facts for the public good. Remember that it's not a "fact" that protects a writer from libel but a "provable fact." And that is a different beast.

In the past six months a new type of suit has emerged, what the Society of Professional Journalists calls a SLAPP suit, "strategic lawsuit against public participation." According to a Columbia Journalism Review story, in a TV Broadcast a dentist in Cincinnati was accused of malfeasance. He didn't sue the station, but sued the people who had accused him, a tactic used to make the accusers retract statements and leave the station without credibility.


There was a disheartening story out of Kansas. It appears that a teacher flunked her entire class because they had plagiarized their work. The parents protested and went to the school board, who stood behind the parents and not the teacher. She, naturally, quit and went on to better things we hope.

The plagiarism of Jayson Blair brought the New York Times to its knees. The USA Today was embarrassed by a similar scandal. In these cases it was a matter of shocking disregard for journalism ethics and a quick exit from the profession.

For others it is a bit more confusing; not quite as black and white.

Sometimes responsibility is shared by the writer and the publication he writes for. In 2003 a feature writer for the Norristown Times Herald was caught copying twelve paragraphs from another daily. He was fired. To get his job back, he filed a grievance. The arbitrator said while he did plagiarize, the publication was equally at fault for not educating the newsroom about how to properly attribute information they got from the internet.

Most writers understand the concept of plagiarism. They know if they take someone's work and submit it as their own it is plagiarism. They know if they go up on the Net and get information and paste it into their own copy that it is plagiarism. They know if they have not documented references they are plagiarizing. What they may not suspect is if they take a piece of writing of their own, change a few words around, and then submit it to another magazine as a different work it would be considered a plagiarized piece.

The habits of this problem can be learned very early on. Most teachers say they encounter plagiarism or what they suspect is plagiarism every school term.

These sites provide an excellent survey of the problem and some resources to rectify it.

From a legal standpoint plagiarism is a violation of copyright and "fair use" of another's material. From an ethical standpoint it is using someone else's work and getting credit for it.

When we read something we are always mentally cataloging that material in one form or another, arguing with it, skimming over it, and so forth. The best way to avoid plagiarism is to write down the story you intend to write, in your own style, thinking through what you are going to say, and then start the process of research. And when you come across something you didn't know before, note it in the article, then, if justified, attribute it to the person who came up with the idea. That is the safest way to go, the fair way, the right way.


A spot-on piece of advice: "Don't sign anything you don't understand." Most freelance contracts are fairly simple but book contracts can be complicated. Even if you have an agent or lawyer you must read that contract line by line and understand what every statement means. When you are satisfied then you sign it. If any part of the contract confuses you, you must address it with the agent, the publishing house, the lawyer, whomever you are dealing with.

Avoid "work for hire" or "all rights" contracts. Editors are instructed to get these type of contracts because magazines or newspapers know the different channels of distribution a particular piece of writing can go. If you decide to sign a contract only do so if the publishers up their offer and if you are convinced you aren't going to do anything more with the piece. But, obviously, the publication wants exclusive rights to the piece so it means they already know of other markets they can stream that piece to.

* * * * *
Make sure you read the links below for more detailed information about these subjects.

Written by David Eide, Sunoasis.com

______________________________R E S O U R C E  N O T E S


Dictionary definition

Merriam-Webster definition
from Northwestern University
Plagiarism: What it is and How to Avoid it.

Shield Laws defined.
A general survey of the "freedom of the press.

Understand Your Contract
Ivan Hoffman

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