Responding to takedown requests

My job is to help student journalists. But occasionally people find me who aren’t student journalists, but are having issues with them. That recently happened when I received an email much like the following:

Four years ago, I was dating a guy I met at school who I eventually moved in with. Unfortunately, he was involved in some pretty heavy stuff that I was unaware of. To make a long story short, a month after moving in the police visited our home to see my ex-boyfriend. He wasn’t there so they asked if they could look around. I’d never really even talked to a policeman before and not knowing better — I stupidly said yes. At the end of the search, they found some stolen property my ex had hidden and, despite my truthful claim of ignorance, I was arrested. When authorities finally picked up my ex-boyfriend, all charges were dropped against me (I honestly believe the police arrested me to get to this guy and they always knew this.) My life could go on unproblematic except that there was an article written about this story in our college’s student newspaper. At the end it lists all the people who were arrested in connection with the investigation. I graduated, interned on government campaigns and at a TV station and am now a graduate student. Things are good, but when you Google my name, this article pops up on the first page. It is starting to really haunt my life and I do not know what to do. I am torn and whatever advice you can offer, I would really appreciate it.

If your paper is online and you haven’t received an email or phone call like this – or something much less polite (“Take it down or I’ll sue!) – it’s only a matter of time. So-called “takedown demands” are becoming a regular part of the journalism world.

In years past, a newspaper printed late Tuesday night was read Wednesday morning and in the garbage (recycling – not so much back then) by Thursday, usually never to be heard from again. In fact, the only way to dig up an article printed in most student newspapers before 1990 was probably to make a trip to the campus and dig through the school library’s archive (if they kept one) or visit the newsroom and dig through an unkempt pile of past issues. Needless to say, had the young woman above met this creep in 1986 instead of 2006, the incident would probably be little more than a bad memory and a painful – but largely private – life lesson.

But in Google, Bing and Yahoo! World all has changed. In GBY! World, online content can live… well…forever, and all media – including student media – need to develop policies and procedures for responding to requests or demands to change that.

Takedown requests vary from sympathetic pleas to “do something,” such as the one above, to angry phone calls and demand letters from hired attorneys threatening that you have “24 hours to remove all references to my client in any form, pictorial or text…” or face some horrible (though usually undisclosed) legal consequence. Like the requests, your response should also vary, depending on the content they want removed, the reasons they provide for it and the role or mission you believe your publication plays as an electronic historical record.

At the very least, a takedown request should generally prompt at least the following three questions:

Is the information at issue accurate and does it concern a matter that was newsworthy at the time it was published?
If your answer to both of these questions is “yes,” whether you take down the information requested is probably less a question of law than of editorial policy. Keep in mind that online publishing does not change libel law. That is, a statement that is “clean” in print does not become libelous merely because it is published online. If a statement is libelous, however, online publication and archival may increase the odds someone will catch it.

But assuming no copyright violations (or some other rare/odd legal claims), you can’t be successfully sued for having published a provably fair and accurate story about a matter of genuine public concern – even if that information embarrasses the subject years down the line. In our example, above, for instance, the woman makes no claim that the story was inaccurate. She admits she was arrested. Also, as a general rule, anytime someone is involved in the criminal justice system the matter is, by definition, a matter of public concern and any legal claim to privacy disappears. Your response to her takedown request is therefore not one dictated by law, but one that is largely up to you.

On the other hand, where you find that your story contains demonstrably inaccurate information, you will want to remove or correct it. (Though, if the mistake is one that might be defamatory or otherwise unlawful, a quick call to a media law attorney is in order.)

Are they demanding a full takedown, a correction/retraction or an update?
Online publishing – using those wonderfully malleable electrons – provides a great deal of flexibility in formulating a takedown policy or response. Simply removing an article from your archives because that’s what someone demands may be the easiest (and is certainly the most effective if removing the information is your goal), but it’s also the most drastic and one to which most major news organizations will only rarely agree.

On the other hand, publishing corrections and retractions are a fairly standard practice. Your goal as a news organization is to report accurate information, and in virtually all cases, if the information is clearly inaccurate or misleading, you will want to correct it.

An update may be appropriate where a story was accurate when published – such as in our example, above – but where reporting future developments would help put the story in context or provide additional information that that those reading the original piece today would probably want to know. But updating every story in your online archives is probably impossible. It takes time and personnel; both are usually limited. An update needs to be treated like any new story; it must be thoroughly reported and carefully written. You can’t simply take the requester’s word, for example, that all charges were subsequently dropped against her. If you are publishing new information, you are responsible for it and you must be confident of its accuracy before doing so. In the example, above, that probably means obtaining official documents or at least talking to the appropriate government employee for confirmation.

As “takedown” or “update” requests become more common, media will have to exercise some discretion and create standards for determining which stories are worthy of updates and which ones they’ll have to pass on.

Finally, as mentioned above, it’s important to check with a media law attorney if the information at issue is potentially libelous or otherwise unlawful. Publishing a correction or adding updated material to a story can have legal consequences – particularly for older, archived stories – and you’ll want to proceed carefully. Moreover, particularly where the accuracy or legality of the material is in question, it’s not uncommon to negotiate with the requesting party about how material will be removed or fixed and to demand some sort of liability release prior to moving forward.

What is the mission of your publication?

Philip Graham, a former co-owner of The Washington Post, called journalism “the first draft of history.” That may be true, but in GBY! World, an online student publication is often the only historical record of campus and student life – particularly for more routine stories that might not warrant the attention of someone putting together a more comprehensive account. Moreover, when it takes less than ten seconds for an employer (or potential new boyfriend/girlfriend) to type in an applicant’s name and conduct a full Internet search, it’s a historical record that will probably be used (unlike that old pile of papers in newsrooms of the past). If you believe part of your mission is to serve as an historical record, you’ll want to avoid pulling down content – or otherwise “rewriting” or “reshaping” history – for which there is no legal liability. And when you do, you’ll want to prominently alert readers with a uniform and consistently applied system for announcing takedowns, corrections and updates. On the other hand, if your main purpose is to serve as more of a “living” bulletin board with news and opinion that is constantly changing with content often being rotated out, the staff may be more willing to take down material when requested to do so.

Responding to takedown requests – effectively, safely, fairly and appropriately – is becoming an increasingly common challenge for the journalism profession. But neither all takedown requests nor all student media organizations are the same and it is important that staffs put some time and thought into developing a takedown policy that is consistent with its mission. For more information on takedown requests, including a discussion about responding to demands for removing copyrighted material, the Student Press Law Center has published an SPLC White Paper: Responding to takedown demands, available for free download on its Web site. []

Mike Hiestand is an attorney, based in the far, upper left corner of the “Lower 48,” and works as a legal consultant to the Student Press Law Center.