Legal Update

From the Legal Hotline (877-NEWS-LAW)

Juvenile drivers, legal notice publication dates and more in today’s Legal Hotline recap.

Q. Our city’s police department gave me a wreck report with the driver’s name “blacked out” and said it’s their “policy” not to list juveniles’ names on their report. He was not arrested for anything. I stood there talking to his mom at the wreck. He fell asleep at the wheel and wrecked. I know they would block it out if he was arrested but it wasn’t a felony. But that’s not the case. Can they keep this information secret?

A. No, they are required to release records of child traffic violations or at least tell you why the following provision does not apply–

(a) Child traffic violators. All records of child traffic violations shall be kept in the full name of the violator and shall be open to inspection and publication in the same manner as adult traffic violations. Section 985.11(3), F.S.

Q. I have a question about legal notices. Here’s the scenario: A lawyer submits a notice to us on Monday, June 5, for a foreclosure sale that is to occur, say, a month from now. Say we post the notice online that same Monday. And, say, the printed newspaper doesn’t come out until that Friday, June 9, at which time the notice is published in print.

As you can see, the notice was published on the same day it appeared in the printed paper. But it also was posted online four days earlier? Does that first online appearance of the notice count? Which date counts as the official date on which notice was given — June 5 or June 9?

A. My thought is that the print publication date (not the website posting date) is the date that counts for calculating the notice of sale date for foreclosure actions. I base this on section 45.031,which says notices of sale must be “published” once a week for 2 consecutive weeks in a “newspaper.” Also, the second “publication” must be at least 5 days before the sale.

If I were attacking the validity of the notice under the above statute, I would argue that mere posting on the newspaper website technically may be “publishing” but it is not the same as “publication” in a “newspaper,” as required by the foreclosure notice law. Therefore, I would argue any timing calculation must be based on the print publication date (June 9), regardless of when it was posted.

I am not sure if you are asking the following related question but maybe you are. That is, have you complied with the chapter 50 language that requires posting on the same day you publish the notice in the newspaper. I think you are in compliance if the Monday posting remains on your website when the actual print version is published on Friday. Even though you have not physically “posted” it on the same day, I think the spirit of the law is complied with if the notice is viewable digitally on the same day it is published.

Q. We publish a community newspaper and today I was served notice by a local government official that he has filed complaints against the newspaper and me as editor and president. His complaint is that we have specifically targeted him because of his ethnicity and he will forward the complaint to the Florida Attorney General. He also threatens to call our paid advertisers to tell them we are discriminatory and racist. The fact is what he states could not be further from the truth, a total fabrication and where such a strange accusation like that would even come from is perplexing. Frankly, I would like nothing better than to file a counter-complaint. He is threatening the company through our advertisers, he is trying to bully me, while he readily cites his attempts to curtail articles and coverage by us. What do you recommend?

A. We asked Jim Maguire at Thomas, LoCicero law firm to weigh in on this. Jim points to a Florida law, section 760.01, et seq., that permits the AG to bring a claim against someone who has engaged in unlawful discrimination. However, the statute is construed consistent with Title VII, which prohibits employment discrimination. This case does not involve employment discrimination so it should not have any application to the paper. Further, it is unlikely the AG would have jurisdiction to look into the editorial decisions of a newspaper–obviously, the First Amendment protects against such action. If the complaining party here really does call advertisers and falsely accuses the paper of being racist and discriminatory, the paper might well have the basis for a tortious interference claim (not to mention a defamation claim).

In sum, the paper may want to provide a short and simple response indicating that it has reported truthfully and accurately, and to the extent it has expressed any opinions, those opinions are constitutionally protected. Further reaffirm the paper does not discriminate based upon race, ethnic background, etc. Finally, the paper absolutely should mention that interfering with advertisers by making false accusations would be improper and possibly subject the writer to civil liability.

Q. Last night a local man was on the “Forged In Fire” reality show on the History Channel. He was a finalist and we are running a story about it. The story doesn’t have pictures of the actual shooting (because he was in it). He has sent us one picture of himself and his family holding the knife he made at the end of the show. We went online and pulled up the video of the show and made screenshots of certain things. Are we “allowed” to use pictures from a television show like that? We can put the byline saying it’s from the History Channel if needed (however I’m not sure how to word that cause it’s not “courtesy” of them, sort of thing). And/or we can leave in the “logo” of the History Channel down in the right hand corner if we need to, also.

A. We asked Jim about this question as well. He initially notes that the more screenshots that are used, the more there is a possible problem. It might be better not to use all three pictures, especially on the front page. Second, while the paper cannot say “courtesy of” the History Channel, the byline could say “Copyright: The History Channel.” Giving credit to the copyright holder reduces risk. Ultimately, this is a question of “fair use.” The materials are copyright protected. But, the paper is using only a small portion of the entire work, the purpose is to report on a newsworthy event, and the use is unlikely to have a significant negative impact on the History Channel’s market for the show. All of these factors would weigh in favor of finding this to be a fair use. All in all, based on this, it is fairly safe to run, but there is a slight possibility the History Channel would complain but chances of a lawsuit are close to zero.