ASKED & ANSWERED: Robin Luce Herrmann

By Jo Mathis Legal News Robin Luce Herrmann specializes in media law at Butzel Long's Bloomfield Hills office. The former editor of The Law Review at the Detroit College of Law, Herrmann has been an adjunct professor at Oakland University teaching The Law of the Press. She is the general counsel for the Michigan Press Association, which will present a news and advertising seminar on Tuesday, Aug. 16, at Saginaw Valley State University. ---------------- Mathis: You graduated from the Detroit College of Law in 1993. A lot has happened to the newspaper industry since then. How has the downturn affected your job as a media law attorney? Herrmann: The downturn has affected many newspapers the same way it has most businesses -- more limited financial and personnel resources. This means that many of my clients may not be in a position to pursue actions to protect the public's rights to know in the same way they could 20 years ago. For example, it is an unfortunate truth that sunshine laws that promote access to public meetings and public records are being systematically narrowed by public bodies that charge excessive fees, use the scare tactic of claiming access invades an individual's privacy and otherwise try to limit the public's understanding of what elected officials are deciding and how they are utilizing tax dollars. The media has been at the vanguard for decades in trying to protect and vindicate these rights -- and it continues to be at the vanguard, but perhaps not as often as it might because of more limited resources. Mathis: The debate is still out regarding the newspaper industry's move to the web, and whether giving away free content was the right decision. Do you have an opinion on the matter? Herrmann: I see this debate continuing for quite some time. Newspapers are using a variety of means of providing content and generating revenue for that content. I do not believe that there is a "one size fits all" approach that will be successful for everyone. Mathis: From a legal stand, does a web presence complicate publishers' lives? Herrmann: Overall, I think that it does complicate matters. Many of the same legal principles that govern "print" publications also govern publications on the web -- so that isn't particularly complicated. However, there are additional legal issues with respect to a web presence -- for example, the protections provided by the Communications Decency Act. Publishers need to understand those protections and the actions they can take to maximize those protections. The speed by which the internet spreads information and the breadth of the dissemination also creates issues that the more "traditional" publication of information did not have to address. Mathis: As general counsel for the Michigan Press Association, you obviously deal with all sorts of issues involving newspapers around the state. Can you briefly describe some of the more common topics you handle? Herrmann: One broad category is newsgathering -- i.e., obtaining the factual information with respect to a story. This includes advising our media clients on: what information they can get under the Freedom of Information Act, access to court proceedings and court records, access to meetings of public bodies under the Open Meetings Act, and how they can or cannot use information gathered from the internet, including social networking sites for a story. We also review stories in advance of publication, respond to subpoenas and requests for retraction, or defend the media when they are sued over a story. We also review advertisements for compliance with applicable law and advise on copyright and trademark issues. Recently, we have been doing quite a bit of work in reviewing and advising on Terms of Use and Privacy Policies for websites. Mathis: What is it you most hope your audience of MPA members learns from you at the seminar on Aug. 16? Herrmann: What we strive to do is provide very practical advice to MPA members. For example, discuss the types of advertising that are more regulated and what to watch out for. Understanding what information you can and cannot get under the Freedom of Information Act. Our job is to help our members maximize their revenue and limit their exposure to liability so they can keep their focus on what they do best: reporting and keeping the public informed. Mathis: During your session, you'll help newspapers avoid costly advertising errors. What are some of these errors? Herrmann: You have to be a MPA member and come to the seminars for more details -- but some of the advertisements that you want to be especially careful with are those dealing with housing, those that might be viewed as discriminatory, those that might be viewed as misleading, and "competitor" ads -- i.e., ads where one competitor is promoting their products/services as compared to their competitor. Mathis: What worries newspaper publishers most regarding the law? Herrmann: I see two big-picture issues. First, day in and day out, the most recurrent problem that the media is dealing with is public bodies and public officials that delay, resist or even obstruct access to information on how they are conducting the public's business. All too often, public officials' mindset is that the public should simply trust them to do the right thing, and there is not a need for the public to see and understand how public officials carry out their official functions. They resent questions being raised by the public and the press. Much to my dismay, I have seen instances where public officials attempt to use their power to stifle questions and commentary on their actions -- as just one example, clients have been told that public officials will not comment if they cannot review a story in advance of publication because of prior "negative" coverage raising concerns about compliance with the Freedom of Information Act. As a result, the lessons learned during the post-Watergate era about the importance of public scrutiny and government accountability are being ignored and/or lost. Our state legislature needs to take a hard look at our sunshine laws and amend them to address these abuses and re-commit to transparency and government accountability. In addition, lawsuits, often claiming millions of dollars in damages, continue to be filed against individuals, organizations, and businesses (including the media) based upon their valid exercise of the rights to petition or free speech, including seeking relief, influencing action, and otherwise participating with government, or in matters of public interest. Such lawsuits, called Strategic Lawsuits Against Public Participation or SLAPPs, are often ultimately dismissed as groundless or unconstitutional, but not before the defendants are put to great expense and interruption of their productive activities. Michigan needs an anti-SLAPP law -- Texas just enacted one -- to help effectively deal with such lawsuits. An anti-SLAPP law is a law that is designed to reduce and provide for early dismissal of meritless lawsuits filed against someone for exercising their First Amendment rights. Anti-SLAPP laws enable those who are the subject of a SLAPP suit to seek early dismissal and oftentimes get their legal fees reimbursed. Mathis: Everybody's a blogger these days. Has that led to an increase in libel suits? Is there anything people still don't understand about libel? Herrmann: I haven't seen a major increase in libel suits relating to bloggers here in Michigan, though there are certainly a number of prominent lawsuits around the country relating to blogging and internet publications. In dealing with persons complaining about stories, I find it astounding that they don't grasp that for them to have a valid libel claim, the statements about which they are complaining have to be false. Very often, they admit that what was printed was true -- but because they believe the truth portrays them unfavorably, they insist that they have a valid claim and that the publisher should do something to make them look better. Mathis: What about all those anonymous internet posters? Do publishers need to worry about them? Herrmann: In my view, when it comes to anonymous internet posters, context is determinative. For example, if an anonymous poster provides a "tip" then publishers treat that tip the way they treat every other tip -- investigate, verify, etc. Publishers should periodically review their Terms of Use and what is occurring with anonymous posters on their website and make sure that their Terms of Use are effective for what they are trying to do. We have some clients that have opted to no longer allow anonymous poster/comments on their website because the comments did not fit in with what the publisher was trying to accomplish. Mathis: Are you glad you concentrated on this aspect of the law? If you had to do it all over again, would you? Herrmann: I really enjoy my media practice, and wouldn't change a thing. It is particularly fulfilling because not only is it a very interesting area of the law, our clients deal with so many issues of importance to the public, and by working with our clients, the public benefits by learning about what is going on in their community and their government. Published: Mon, Aug 15, 2011

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