Can I Publish This?
Privacy & Leaked Information
Does your content contain any potentially private or personal information or records, including leaked information or records?
Privacy & Leaked Information
This content is unlikely to be risky under privacy laws, since it isn't private, personal, or leaked.
For more information on privacy laws, check out our resources page!
Privacy & Leaked Information
Let's first talk about how you got that information or those records. Did you acquire this information through public information, such as by a public records request or from a government website?
Privacy & Leaked Information
This content should not put you at risk for liability related to privacy, as it is already in the public record.
This is true even if the information is protected by privacy laws, such as HIPAA or FERPA.
There may be ethical issues regarding publishing potentially private information, separate from questions about legal risk. If you have questions about ethics, you might consider reaching out to the Society of Professional Journalists' ethics hotline or speaking with your adviser.
Privacy & Leaked Information
How did you acquire the information your content is based on? Did you or someone on your staff personally procure it, or did you receive it from a source?
Privacy & Leaked Information
Did you or someone related to your publication influence the source to procure the information/documents?
For example, did you or another publication staffer ask the source to procure the information/documents, pay the source to procure the documents, or indicate to the source that you would appreciate the source procuring the documents?
Privacy & Leaked Information
Was the information or documents procured by entering a place under false pretenses?
Some examples of this include applying for a job for the sole purpose of doing an undercover investigation of that workplace, or pretending to be taking a survey in order to enter someone's home for reporting purposes.
Privacy & Leaked Information
Is the information/documents related to a matter of public concern—issues any segment of the general public would be interested in—or matters purely of private concern—issues that have no relevance to the general public or that involve only personal matters?
Privacy & Leaked Information
This could be legally risky. Some states have laws that prohibit receiving illegally procured information such as hacked emails, tapped phone conversations, etc.
While these laws are subject to First Amendment exceptions, those exceptions generally only apply when the information is of public concern and the journalist and publication did not influence its illegal procurement.
There may be additional legal risks in publishing this information. Let's explore those.
Privacy & Leaked Information
Was the information legally obtained by the source?
Privacy & Leaked Information
Was the information or documents procured by entering a place where the person acquiring the information did not have permission to be?
Privacy & Leaked Information
This is legally risky. Entering a place—such as a workplace, a home, or a business—without permission or under false pretenses can be considered trespass and/or intrusion.
Both trespass and intrusion are what we call privacy torts. This is just a fancy way of saying they're actions for which someone could sue. In some cases, trespass may also be considered a crime.
States' definitions of intrusion and trespass vary. Check out our resources page and consider reaching out for help at 1-717-734-SPFI or through our online form.
There may be additional legal risks in publishing this information. Let's explore those.
Privacy & Leaked Information
This content should not put you at risk for liability based on privacy or illegal procurement, since you received it from a source and the information/documents are about a matter of public concern.
Under Bartnicki v. Vopper, journalists have a right to publish information and documents on matters of public concern that are received from a source, regardless of whether the source procured that information legally.
However, journalists should be cautious to avoid influencing sources to illegally procure information for them, and should also avoid publishing such information when it is not on matters of public concern.
There may be ethical issues regarding publishing potentially private information, separate from questions about legal risk. If you have questions about ethics, you might consider reaching out to the Society of Professional Journalists' ethics hotline or speaking with your adviser.
Privacy & Leaked Information
Did you or someone connected with your publication record another person through audio or video recording in order to procure the information?
Privacy & Leaked Information
Did the person making the recording ask the person or people being recorded for permission to record?
Privacy & Leaked Information
Did the person or people being recorded know they were being recorded?
Privacy & Leaked Information
Sounds like there wasn't an issue with how the information was procured, but there may be additional legal risks in publishing this information. Let's explore those.
Privacy & Leaked Information
Was the person being recorded speaking privately (such as in a one-on-one conversation, with a small group, or at an invite-only event) or more publicly?
Privacy & Leaked Information
This could be legally risky, depending on the laws of the states where the person who is recording and where the person being recorded are located.
Some states, called "two party consent" states, require that all people in the conversation consent to any secretive recording. However, other states, called "one party consent" states, require that only one person in the conversation consent to a secretive or unknown recording. That one person can be the reporter.
To find out what kind of recording statutes different states have, check out this resource from the Reporters Committee for Freedom of the Press.
Please also keep in mind that, even in one party consent states, some institutions have more restrictive recording policies, which require consent by all those recorded. Please also check your college or university's policies if you plan to record a conversation on campus.
This is not the only potential privacy pitfall. Let's explore another.
Privacy & Leaked Information
One legal risk is called "publication of private fact." Let's talk about this risk.
Is the information known by a lot of people?
Privacy & Leaked Information
Cool. Under the cause of action called "public disclosure of private fact," journalists and publications may face liability for publishing, without consent, information that is not newsworthy if those facts are not generally known and if their publication would be highly offensive to a reasonable person.
Since the information you have is known by a lot of people, it's probably not really "private," and therefore shouldn't come with risk for public disclosure of private fact liability.
But hold on! That's not the only potential legal risk related to privacy. Let's keep chatting.
Privacy & Leaked Information
Great! Under the cause of action called "public disclosure of private fact," journalists and publications may face liability for publishing, without consent, information that is not newsworthy if those facts are not generally known and if their publication would be highly offensive to a reasonable person.
Since publication of the information you have is unlikely to be highly offensive to a reasonable person, it probably won't come with risk for public disclosure of private fact liability.
That said, there may be additional legal risks in publishing this information. Let's keep chatting.
Privacy & Leaked Information
Great! Under the cause of action called "public disclosure of private fact," journalists and publications may face liability for publishing, without consent, information that is not newsworthy if those facts are not generally known and if their publication would be highly offensive to a reasonable person.
Since you have consent from the person who is the subject of the private information, this shouldn't carry risk based on publication of private fact. That said, it's always best practice to make sure you have that consent in writing, to ensure that you and the subject are on the same page about what will be disclosed.
That's also not the only potential legal risk related to privacy. Let's keep chatting.
Privacy & Leaked Information
Would a reasonable person find the publication of this fact highly offensive?
To help you out, courts have found the publication of the following things to be highly offensive to a reasonable person:
- a private sex tape of two celebrities
- someone's medical history of sexually-transmitted illnesses
- a video of a woman's cesarean section
Privacy & Leaked Information
Do you have the consent of the subject of this information to publish it?
Privacy & Leaked Information
There may be liability for publishing private documents or information that does not involve matters of public concern, even if that information is true.
Under the cause of action called "public disclosure of private fact," journalists and publications may face liability for publishing, without consent, information that is not newsworthy if those facts are not generally known and if their publication would be highly offensive to a reasonable person.
Not all states recognize public disclosure of private fact as unlawful, though, and states' definitions vary. Check out our resources page and consider reaching out for help at 1-717-734-SPFI or through our online form.
This is not the only potential privacy pitfall. Let's explore another.
Privacy & Leaked Information
Let's next talk about "misappropriation."
Is the content newsworthy?
What's "newsworthy"? Different courts define newsworthiness in various ways, but here are a few things that courts tend to consider:
- whether the content has social value
- how intrusive the content is into the privacy of others
- to what degree the subject of the content voluntarily became a person of public notoriety or fame
Privacy & Leaked Information
Great! Most of the time, newsworthiness is a defense to misappropriation, since misappropriation is generally about using a person's likeness for a commercial purpose.
However, like any good legal issue, there are exceptions.
Are you using a large part of something that another person uses as a money-making venture, such as a chapter of a book, a video of a performance, or a song?
Privacy & Leaked Information
This may be legally risky under misappropriation laws. Misappropriation generally proscribes using too much of a person's money-making venture, even if it's newsworthy.
Not all states recognize misappropriation as unlawful, though, and states' definitions vary. Check out our resources page and consider reaching out for help at 1-717-734-SPFI or through our online form.
This could also bring potential legal risk from an intellectual property perspective. Please check out our intellectual property tab to learn more!
Before you go, let's talk through another potential risk: false light.
Privacy & Leaked Information
Great. The exception to the newsworthiness defense in misappropriation cases doesn't always apply when a journalist or publication uses a large part of something that another person uses as a money-making venture. But since you aren't doing that, we can move on.
Let's talk through another potential risk: false light.
Privacy & Leaked Information
Are you using someone else's likeness, such as their picture or a video of them?
Privacy & Leaked Information
Awesome. Misappropriation is generally about using a person's likeness for a commercial purpose, so not using content with someone's likeness is unlikely to create misappropriation liability.
Let's talk through another potential risk: false light.
Privacy & Leaked Information
This may be legally risky under misappropriation laws. Misappropriation generally proscribes using a person's likeness for a money-making, non-newsworthy purpose.
Not all states recognize misappropriation as unlawful, though, and states' definitions vary. Check out our resources page and consider reaching out for help at 1-717-734-SPFI or through our online form.
This could also bring potential legal risk from an intellectual property perspective. Please check out our intellectual property tab to learn more!
Before you go, let's talk through another potential risk: false light.
Privacy & Leaked Information
Could the content be interpreted to be making a false statement about a person or group of people, even if that statement is not intended?
Here are a couple hypotheticals to make that question make more sense:
You might have a picture of Sandy next to an article about bulimia. Nowhere does it say that Sandy has bulimia. Maybe Sandy is even leading a bulimia awareness campaign. But a reader might see the picture and the headline and assume that Sandy has bulimia.
Or you might be telling a story about a crime: Beth came home to her husband Carter hanging out with another woman, Veronica. Beth shoots Veronica. That's the story you tell. But what you don't mention is that Harold, Zach, and Katlyn were also hanging out with Carter at the same time. A reader might think Carter and Veronica were having an inappopriate relationship since you insinuated they were hanging out privately.
Privacy & Leaked Information
Great. This shouldn't create any risk under false light, which occurs when something is published that is technically true, but that is communicated in such a way that it insinuates untrue claims.
That's a wrap on privacy issues. Please check out our resources if you'd like to learn more.
Privacy & Leaked Information
This could put you at risk for liabilty for false light, which occurs when something is published that is technically true, but that is communicated in such a way that it insinuates untrue claims.
Try to tell all the facts about the situation and avoid accidentally linking people with situations that don't apply to them.
This could also put you at potential risk for defamation liability. Check out our defamation tab to learn more!
Not all states recognize false light as unlawful, though, and states' definitions vary. Check out our resources page and consider reaching out for help at 1-717-734-SPFI or through our online form.