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Protecting Sources' Privacy

Tips and tricks to help journos navigate privacy perils

By E.B. Boyd - September 10, 2007
Study a magazine contract closely, and you'll notice they usually ask freelance writers to guarantee the article they submit won't violate anyone's privacy. "Between MySpace, YouTube, and the blogosphere," you might think to yourself, "who has privacy anymore?" Notwithstanding the explosion in self-revelation on the Internet -- employees blogging about bosses they hate, patients writing about their bouts with life-threatening illnesses, and all those sultry narratives on, just to name a few examples -- the law still recognizes that each individual has some rights to preserve their own privacy, and that the media can't publish information willy-nilly about the average person -- or even public officials and celebrities, in certain situations -- without their consent. Violate those rules, and you could find yourself in court. Here are tips on what you can and can't do when writing about other people.*

Know the law
There are three main areas of privacy law: private facts, intrusion, and false light. "Private facts" means you can't reveal otherwise unnewsworthy private information that a "reasonable person" would consider offensive -- without the consent of the individual in question. "Intrusion" concerns how you get the goods. Anything an average person would not be able to see or hear in a public place without using an amplifying device is considered private. A voluminous argument between two lawmakers on a Senate floor would generally be considered public; a whispered conversation in a corner of that same Senate floor generally would not, even if you can pick it up using a high-powered microphone. "False light" is a cousin to libel in that someone feels your story has made them look bad. It's different from libel, however, because the facts of the story are usually true. Media attorney James Chadwick recalls a case where a California newspaper published a story about bongo drummers causing a nuisance by playing on public streets. Alongside it, they ran a file photo of a man walking down the street carrying a drum. It turns out the man was an accomplished musician who had never played on the street. He complained that the newspaper had put him in a "false light" because it made him look like he was one of the drummers annoying local residents.

The technicalities of what is and isn't permitted under privacy laws vary from state to state. Many states don't consider it intrusion if you tape an interview without telling your subject, for example, but California and several others do. To make sure you stay on the right side of the law, get familiar with the laws of the states in which you work. Resources for this include the Reporters Committee for Freedom of the Press' Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C. and its Open Government Guide.

Tagging along has its limits
If you watch police reality shows, you could get the impression that journalists are allowed to follow cops any place they go. But actually, government officials' rights to enter private property generally don't extend to the journalists along for the ride. If you're doing a story on how police in your town handle domestic abuse and you accompany officers on a 911 call, don't follow them into a private home unless the occupants invite you in. Stay on public property, or "you could be sued for intrusion," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

Don't substitute observation for documentation
Let's say you want to write about how the president of your local hospital frequents strip clubs. You've seen him go into the local Crazy Horse several weekends in a row, but the newsworthiness of this otherwise private hobby is debatable, especially if you don't have any evidence that it affects his management of the hospital. Think twice about going public based on your observations alone. Now assume the official has just been through an acrimonious divorce. His ex-wife testified extensively during the divorce hearings about his penchant for pole-dancers, and her testimony is part of the case's public record. This would put you on safe ground. "As long as you fairly and accurately report the contents of an official proceeding, then you cannot be liable for that, even if it's private," says Chadwick, the current vice-chair of the Media, Privacy, and Defamation Law Committee of the American Bar Association.

"I almost read [non-media savvy subjects] a Miranda warning."

Information self-published online is fair game
Remember the days when you had no idea what your neighbors and co-workers ate for breakfast, much less whether their preferences ran to leather or lace? With the explosion of blogs and YouTube, not to mention the breathless confessions on MySpace and other social networking sites, legions of otherwise private individuals are divulging what previously might have been their deepest and darkest secrets. The good thing for journalists is that, once a revelation is in the public sphere, it's fair game. If you're doing a story about eating disorders among stay-at-home dads, for example, you're free to use any material published online by your subjects -- assuming, of course, that you didn't need to a password or other key to access the information and that you've validated that the entries on John Doe of 123 Main Street's "Ex-Anorexic" blog were in fact written by John Doe of 123 Main Street. "If other people know about it, and certainly if you put it up on the Internet, you're not going to be able to sue for right of privacy," says Sandra Baron, executive director of the Media Law Center.

Get consent -- preferably on tape
The key to reporting private information that hasn't previously been disclosed and isn't otherwise newsworthy is getting the subject's consent. Any time you speak to a subject, clearly explain that you're working on a story for publication and that you're interviewing them for inclusion in that story. Anything shared after that is technically on the record. The less media-savvy the subject, however, the greater the pains you should take to ensure they understand that what they share with you could end up in print. "I almost read them a Miranda warning," says Dale Mahardige, a Pulitzer Prize-winning author who teaches journalism at Columbia University. A best practice to protect yourself, should your subject recant later, is to make a habit of tape-recording your intro and the subsequent interview. Use a standard spiel such as: "This is Jane Doe, interviewing Bob Smith, on January 1, 2007, about his bout with cancer for a story for Cancer News Weekly." By implication, anything Bob shares with you afterwards is something he's consented to make public. One caveat to this rule: Children and other people not considered legally competent cannot give consent. When interviewing minors and legally incompetent individuals, get consent from a parent or guardian instead.

Don't follow invasive media trends
Statutes protecting privacy generally rest on the standard of what a "reasonable person" would consider private. Historically, that's meant things like a person's health history, particularly regarding cancer and AIDS, sexual behavior, sexual orientation, and use of drugs and alcohol. The increasing exhibitionism on the Internet (S&M Blog anyone?), not to mention the outrageous revelations of private citizens on tabloid talk shows (tune in to The Jerry Springer Show any day of the week), could eventually change that. The things the average person wants to keep secret today might be considered banal tomorrow. But that hasn't happened yet. Judges are still using traditional definitions to determine if a detail of a person's life should be considered private, so you should too.

Truth: not a defense
Journalism professors and editors repeatedly entreat writers to fact-check and get it right. However, getting it right isn't enough when it comes to private matters that are not of public concern. Instead, you have to ensure that you have consent to divulge the information or be able to prove that the information was already divulged publicly. A private fact that someone has kept private is off-limits, even if it's true. Similarly, a photograph that records a true event is not fair game if you did not take it in what the courts consider a "public" place. For example, in some states, a married celebrity who's carrying on an unacknowledged affair could legitimately sue you for using a powerful telephoto lens to see into the window of his house and snap pictures of him and his paramour in a compromising position. If a person standing in a public space couldn't have observed the tryst with (ahem) a naked eye, it's private.

Ask about your subjects' concerns
If you're doing a story on a sensitive topic that features private individuals, especially ones who are not media-savvy, go the distance and "try to understand what matters in that person's life, what might be very personal to them, and what information, if revealed, might be harmful," says Bob Steele, the Nelson Scholar for Journalism Values at the Poynter Institute. That way you'll be clear about what they feel comfortable discussing and having published and what they won't. At the same time, with these frank conversations, you might luck out and discover that something you thought they'd want to keep secret -- like sexual abuse, for example -- is a subject they're actually willing to discuss for the record.

Be judicious with sensitive information
This has more to do with judgment and ethics than it does with the law, but remember that when you're reporting on a person who's not used to being covered in the media, your subject might not recognize the ramifications of what they're telling you. Lisa Collier Cool, an award-winning freelance writer and former president of the American Society of Journalists and Authors, has written extensively about health issues for national publications. She remembers doing a story about a woman who had gone through a serious illness. The woman mentioned that her husband had had an affair while she was sick, and she wanted that detail included in the story. Cool realized that revelation could be harmful to the couple's children sometime down the line. Since the detail wasn't critical to the core of the story, Cool pointed out to her subject that she thought including it was unwise. "Sometimes people don't always fully think about how things they say might seem to others in print," she says.

Replace a reluctant subject
Cool recalls pitching another story to a national publication about a woman who had been struck by lightning -- inside her home. Cool had read about the incident in a newspaper, but when she tried to interview the woman, the subject kept rescheduling their appointments. Cool realized the subject was backing out of the story, which left her on the hook since the magazine was expecting her piece. But instead of pressing forward with a reluctant source, Cool scrambled and managed to find two other women who also had been struck by lightning indoors and wrote about them instead. "If [your subject] gives you trouble at first, which is the honeymoon period, how good are they going to be during the not-so-fun period, like the fact-checking?" said Cool. Your best bet will always be to find someone who's on board with participating in your story.

For further information, review the Reporters Committee for Freedom of the Press' First Amendment Handbook for a summary of the issues in privacy law. Also check out the Privacy section of the Electronic Frontier Foundation's Legal Guide for Bloggers and the bullet points in a column by Bob Steele, the Nelson Poynter Scholar for Journalism Values at the Poynter Institute.

E.B. Boyd is a freelance writer based in San Francisco.

[EDITOR'S NOTE: *Since we're talking law, we must make clear: This article does not constitute legal advice, but aims to offer informative tips. Take the time to educate yourself in depth, and if you have concerns stemming from anything you're working on, consult a lawyer.]

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