Major Legal Challenges

Major Legal Challenges Facing Oral History In The Digital Age

by John Neuenschwander

In 2007 the California Supreme Court decided the most noteworthy 21^st century case involving the legal liability of an oral history archive.[1]  While the court’s ruling was favorable, the archival practice that spawned the lawsuit highlights the vast difference between two different information sharing eras. The allegedly defamatory statements that led to this lawsuit were discovered by a researcher who read an interview transcript that had been available for public inspection for over eight years. Only three other libraries had copies of this transcript and of course the researcher had to physically go to the Regional Oral History Office (ROHO) in the Bancroft Library at the University of California, Berkeley to read it. Now fast forward to 2012 and the tens of thousands of interview transcripts and recordings that are available online and can be accessed worldwide with a few clicks of a mouse. It does not take an odds maker to calculate how many more chances there are today for someone to read or listen to an interview and to subsequently claim some sort of legal harm.

In May, 2011 another very important legal proceeding began when subpoenas were served on Boston College by the U.S. Attorneys’ Office for interviews conducted by the Belfast Project. The central issue here, whether pledges of confidentiality can be overridden by a subpoena issued by a governmental entity seeking information in a criminal proceeding  is obviously of importance to oral historians who offer such restrictions to encourage interviewees to be frank and open.

Shortly after receiving the subpoenas, Boston College moved to quash the subpoenas issued by the U.S. Attorneys’ Office. The interviews being sought were recorded between 2001-2006 with former members of the Irish Republican Army and other paramilitary groups who were participants in the “Troubles” in Northern Ireland beginning in 1969. The promise made to all interviewees was that their interviews would remain confidential until their death.  A book by the Director of the Belfast Project and a public admission by one of the IRA interviewees about an unsolved murder apparently prompted the Police Service of Northern Ireland to seek access to some of the interviews collected by the Belfast Project. Pursuant to a Mutual Legal Assistance Treaty, the United States Government at the request of the United Kingdom initially served Boston College with subpoenas for the interviews of Dolours Price and Brendan Hughes. The interviews with the Hughes were promptly turned over because he had died.  In August, 2011 additional subpoenas were served seeking “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” The primary basis for Boston College’s motion to have the subpoenas quashed was the pledge of confidentiality that had been extended to all interviewees and the chilling effect that compelled disclosure would have upon future research. They emphasized that if the continued flow of information to both journalists and scholars about controversial issues was constricted, society in general would be negatively impacted by such restrictions upon free speech.

In December, 2011 the federal district court not only refused to quash the subpoena for Price but after an in camera inspection of all of the transcripts also ordered Boston College to turn over the interviews from  seven other participants in the Belfast Project.[2] This decision triggered two separate appeals. The first appeal was filed by Ed Moloney and Anthony McIntyre, the Director and chief interviewer for the Belfast Project, and is the basis for the ruling by the First Circuit Court of Appeals on July 6, 2012. The second appeal filed by Boston College addresses the ruling by the district court that BC must release seven additional interviews. The College chose not to appeal the district court’s ruling regarding the Price interviews based on her public admissions regarding past criminal activities during the “Troubles”.

The appeal filed by Moloney and McIntyre grew out of the decision by the district court. On two occasions they sought to intervene separately in the lawsuit to squash the subpoenas but on both occasions were not allowed to proceed.  Both of these attempts appear to have been grounded in their disagreement with Boston College over the administration of the confidentiality provisions and the legal strategy employed by BC to defend against the subpoenas. In their appeal to the First Circuit Court of Appeals they presented three main causes of action: 1) the Mutual Legal Assistance Treaty allowed private interests to intervene to prevent evidence from being release, 2) the district court abused its discretion under the MLAT, 3) the subpoenas should be quashed because they impinged on the First Amendment rights of the researchers. 

In a lengthy opinion, a three judge panel for the First Circuit rejected all three causes of actions brought by the researchers. The most important rejection in this case and for the pending appeal by Boston College was the court’s response to the researchers’ constitutional challenge.[3] Under the First Amendment, Moloney and McIntyre claimed that they had a constitutionally protected freedom “…to impart historically important information for the benefit of the American public without the threat of adverse government reaction.” They buttressed this claim by arguing that they had an academic research privilege that was akin to a reporter’s privilege. They also maintained that if the interviews were turned over their lives might be at risk as well as those of some of the interviewees.

To assess this claim of privilege, the First Circuit relied heavily on the precedent established by the U.S. Supreme Court in Branzburg v. Hayes.[4] In Branzburg a reporter refused to testify before a grand jury about information he had received from confidential sources claiming that under the First Amendment he had a privilege not to do so.  The Supreme Court, however, refused to recognize such a privilege. Instead, they stressed that whether confidentiality was offered to shield the perpetrators of crimes or innocent informants, “effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of the government.”  Based on this precedent, the First Circuit ruled that “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.” The court also emphasized that the treaty obligation to assist another nation in a criminal investigation made the government’s interest here even stronger than it had been in Branzburg.

The court also noted that this litigation might have been avoided had Boston College and the researchers been on the same page regarding the limits of confidentiality. According to the evidence presented to the court, Ed Moloney had been directed by BC to place a provision is each release agreement that the pledge of confidentiality would be protected “to the extent American law allows.” This was not done and Anthony McIntyre indicated had he known that the pledge of confidentiality was not ironclad he would not have undertaken the interviews with former IRA members.

Whether this decision is the final word is still to be determined. The two researchers have several appeal options. They could seek a review of this ruling by the full bench of judges on the First Circuit. They could also file a petition for certiorari with the U.S. Supreme Court. Although the Supreme Court takes very few cases each year, resolving disagreements among the Circuit Courts of Appeal is often an important criterion for acceptance. As the First Circuit noted, the issue of whether Branzburg precludes the creation of a reporter’s privilege under any circumstance has produced a number of conflicting decisions. Also, the appeal filed by Boston College regarding additional interviews that the district court ordered them to turn over is still pending before another panel of judges from the First Circuit.[5]

While both of these cases demonstrate that oral historians and the materials they collect can on occasion spawn litigation, it is important to ponder how the ever faster and more user friendly technologies that are being used by oral historians in the digital age are not only capable of enhancing and enriching the work that oral historians do but unfortunately expanding the chances for legal challenges as well. Take for example the use of oral history as a teaching tool in the classroom. Thousands of high school and college teachers annually introduce their students to the methodology of oral history. Until very recently the end product was usually a recording or perhaps a transcript that was either shared with the class or incorporated into a paper. Once again fast forward to 2011 and many of the students conducting class related oral history interviews are now producing mini-documentaries about the narrator with photos, sound, and film clips. The ease and speed with which this techno-savvy generation of students is turning out such media is just another indication of the vastly expanded media creation opportunities that most oral history programs now have. Once again the likelihood of someone claiming legal harm increases in direct proportion to this expansion.

The purpose of both of these examples is to point up the need for even greater attention to developing and following ethically and legally sound procedures in the collecting, curating, and disseminating of oral history materials. The three areas of law that apply most directly to this effort are the release/consenting process, privacy law, and copyright.  Oral history programs and practitioners have thus far been relatively untouched by legal challenges and litigation. To maintain this status in the digital information era will require even more planning and vigilance

Releases & The Consenting Process

Today the vast majority of oral historians and programs utilize release agreement to secure both the transfer of copyright and inform interviewees and interviewers of the terms and conditions relative to processing and future use of their interviews. While all elements of such releases are important whether they be in deed of gift or contract form, the potential for vastly expanded access and use in the digital age requires even more attention to three in particular: the consenting process, the language of the future use clause, and the inclusion of a right of publicity provision.

The first issue, the consenting process, is clearly derived from the importance that Institutional Review Boards (IRBs) place on trying to ensure that research subjects are fully informed about the potential risks that they may face by participating in a biomedical study. Proponents of behavioral studies that also incur IRB review are also required to show that they too will engage in a rigorous consenting process. For studies that utilize oral history interviewing this usually means that the release agreement must provide warnings about even the most remote risks and specific information on whom to contact in the event that a participant has a concern about the way in which the study is conducted. Such agreements also contain the standard information found in most non-IRB dictated agreements regarding transfer of copyright, editing/ transcribing, and a statement of permitted future uses. Such overkill by IRBs should not, however, be taken as a sign that close attention to the consenting process in not important. The best way to address the consenting process if a project is not one that requires IRB approval is to insert a recital clause into the release agreement such as: “I have read and understand this agreement which expresses the complete understanding of the parties.” It is also wise to have the person who presents and secures the signed release document the entire consenting process. This record should in turn be kept on file. Effective informed consent is also predicated on the use of clear and unambiguous language in a release.This is where the all- important future use clause comes in.Overly broad clauses that like “for such scholarly and educational uses as the oral history program shall deem appropriate,” are simply too generic in the digital age.  For truly effective consenting to occur this clause must be far more informative and specific like: “Potential uses of the interviews (in whole or in part)include but are not limited to research, Internet display, media productions, publications, educational curriculum, and museum exhibits.” Finally, the growing use of video to record interviews together with increasing online displays of interviews and media productions all underscore the need to secure permission from interviewees and interviewers to display their names and images. A simple statement such as: “I also grant the oral history program the right to use or permit my name and likeness to be used in conjunction with any Internet display, media production or publication” should suffice.

Privacy Issues

The major privacy torts: defamation (slander and libel), false light, public disclosure of private facts, and misappropriation of likeness (right of publicity) have always been potential liability issues for oral historians. With increased interview dissemination and media productions they may become even more so. As a result, more planning and vigilance is needed across from collections thru dissemination. The following protective measures should be standard operating procedure:

Staff Training-This applies to everyone in the program. There should be an ongoing process in which potentially defamatory statements are discussed and reviewed.

Checklists-A series of questions to assess potential defamation is a good way to facilitate staff training. These might include:

-Is the subject living and still active in his work/profession (individual or organization)?

-Would a reader’s opinion or estimation of the subject be changed after reading the statement?

-Is the negative opinion expressed just that or does it contain supporting facts or at least imply them?

-Is there other evidence to support or corroborate the interviewee’s statement?

Verify/Seal/Edit/Delete-Most negative statements  or characterizations are not defamatory. You may be able to corroborate the truth of the statement by consulting written sources or even other interviews. The historical record is not and should not be something that has been sanitized by its creators and keepers. Thus an incremental step –by- step approach that begins with an attempt to verify should be used.[6]

The torts of false light and public disclosure of private facts are also of concern. The same SOP for defamation should also be used to protect against potential legal liability from these two torts. While false light is very similar to defamation, the major difference is that for former tort the offending words do not have to be false. In other words an accurate portrayal of an individual or group could trigger a false light claim if the manner in which it was scripted or presented could be interpreted by viewers/readers as suggesting some kind of highly offensive behavior. Since this cause of action usually arises from a media production or publication; a careful examination prior to release to check for this possibility is always a good idea. The third privacy tort, public disclosure of private facts, usually involves very personal factual information that would be highly offensive to a reasonable person and does not really address a legitimate matter of public concern. Disclosing that someone who is now a respected citizen was convicted of a crime many years ago or airing out intimate details about someone’s personal life are the types of factual disclosures that can trigger this cause of action.

Misappropriation of one’s name or likeness also known as the right of publicity is the other privacy tort that also deserves some consideration.  While the “rich and famous” are the ones who are most often actively defending against the unauthorized use or their name or image for commercial gain, every person whatever their socio-economic status also has a right to protest against the unauthorized use of his/her identity even if the use is non-commercial in nature. As noted earlier in this essay permission to use an interviewee likeness or name should be a standard inclusion in release agreements. But careful consideration must also be given to the including non-interviewees in media programs and publications. This consideration is driven more by professional ethics than law. There is a “news and commentary” exception that courts have interpreted very broadly when someone challenges the use of his/her name or likeness. It is safe to say that this except encompasses almost any programming or publication that conveys information or commentary on a topic of current or historical public interest.[7]  While this defense may be reassuring to oral historians who primarily generate non-commercial materials, appropriate sensitivity to the potential privacy concerns of private individuals should be standard practice.

Copyright

Someone owns just about everything.

Fair use lets you use their things.

But not as much as you would like.

Sometimes you are the owner-think about that!

This is how the University of Texas System introduces its online “Crash Course In Copyright.” [8] This walk a mile in both your shoes and the other guys effectively frames the two sides of the copyright issue. While the vast majority of oral historians and programs are on the ownership side, the vast expansion in media production and publication in the digital age often places oral historians on the user side as well. Protection of content to be sure is the larger issue for oral historian.  It can be best addressed by the question: how and to what extent do you wish to protect the copyrights in the interviews and media productions that you are publishing online? Since almost all interviews fall into the nonfiction category of works, they only receive “thin” copyright protection. This level of protection is usually limited to excessive copying of the narrative and perhaps the organizational structure. The “fair use” defense in general also permits considerable utilization of nonfiction works even without permission so this should always be an important consideration in determining what protective measures to employ in cyberspace. The following are examples of some of the approaches currently in use:

Click Wrap Agreements- this requires a potential user to sign in and agree to all terms of use.

Open Access –but with clearly stated limits on use. These limitations are most helpful when accompanied by a “fair use” policy that allows users to quote from and utilize factional information coupled with a request that there will be proper attribution given to the interviewee/program.

Open Access- with only the briefest statement of copyright or no mention whatsoever.

The oral historian as a “fair user” of copyrighted material in media productions and publications brings to the table a different set of considerations. Since the Internet makes it so easy to copy material from another site it is important that oral historians always presume that “Someone owns just about everything.“  Whether the material you would like to use is clip art, photos, music, or shareware you must first read and consider the usage policy of the Website creator. If potential users must sign a “click wrap” agreement read it over very carefully to ascertain whether your intended use is permitted. Materials in traditional printed sources obviously require the same care before use. This is often more complicated because you may have to go through a formal permission process.

The “fair use lets you use their things,” view is sometimes considered by nonprofit users to allow unlimited usage. It does not! While it can be a valuable defense for the nonprofit user when they take copyrighted material and transform it by way of research, scholarship, criticism or journalism, it is not an affirmative right. Even those who are found to have innocently infringed on someone’s copyright under the mistaken belief that they were covered by the” fair use” doctrine may still be liable for monetary damages.[9] So the best advice is to always be in touch with both sides of copyright: owner and user.

The task of designing and implementing a legally sound approach for copyright use and protection in the digital age is not as daunting as it might first appear because of the existence Creative Commons, a nonprofit organization that seeks  to change the mindset of copyright holders from an “all rights reserved” position to a “some rights reserved” stance. This approach seeks to encourage copyright holders to share some of the rights to their works with the public while legally retaining others that may have commercial value. To accomplish this goal Creative Commons has developed six different types of “open source” or public licenses on its website that anyone can access and use. These licenses are drafted in strict compliance with copyright law and allow copyright holders to determine which uses are freely available to the public and which rights are reserved.  The goal of this initiative which began in 2001 is “…to provide a free, public, and standardized infrastructure that creates a balance between the reality of the Internet and the reality of copyright.”[10] For example, an oral historian or program could select a license from the Creative Commons website that allows for unlimited use of an interview as long as the use is non-commercial in nature and appropriate attribution is given to the copyright holder.  Not only are these licenses drafted by copyright lawyers but the user of an “open source” license can also prominently display the Creative Commons logo with the work. Since such licenses are become more and more commonplace throughout the world, this type of notice is very advantageous in terms of alerting potential users to what they can and cannot do with a work. Visitor to the Creative Commons website can also find helpful guidance on how to dispense with copyright altogether by dedicating a creative work to the public domain.

It is important to note that while Creative Commons provides both the encouragement and the tools for copyright holders to allow for some free public uses of their works, the organization does not police the public licenses that it offers. This was demonstrated in a recent case involving a lawsuit brought by a copyright holder against a competitor for infringement.[11]  While Creative Commons did appear in this lawsuit as an amicus curiae (a friend of the court), it did so only to emphasis that its public source licenses conform to copyright law and if a use tries to utilize a right that was reserved by the copyright holder they could be liable for such infringement.