Your rights as an online journalist: what will 2007 bring?

With a new year and a newly Democratic Congress, the atmosphere of American political discourse is thick with auguries of change. What might those changes mean for online journalists? We queried experts in constitutional law, copyright and ethics for a forecast for online journalists in 2007.

Some of the experts we spoke to registered their strongest concerns about the Bush administration’s aggressive stance toward journalists. “George Bush is exceedingly bad news for this country on almost every front, and one of those fronts is his contempt for the press,” said David Rubin, Dean and Professor of the S.I. Newhouse School of Public Communications at Syracuse University. “He and his Justice Department, prosecutors, and the whole tone that he has set – are more than willing to use the subpoena power to get sources and get confidential information and basically, in his view, put journalists in their place.”

However, John Hartman, a journalism professor at Central Michigan University, predicted that in 2007, “The Bush Administration will be forced to back off on and drop its investigations and intimidations of journalists and news organizations as it is forced to spend time defending itself from various Congressional investigations, including those that might be preludes to impeachment.” Indeed, there are news reports saying that the President is beefing up his legal team in anticipation of Congressional investigations.

As critical as he is of the President Bush’s actions, Rubin doesn’t share Hartman’s expectation of change; “I don’t think anything changes him.” Rubin said it would not surprise him to see more journalists jailed in 2007: “Not only ultimately jailed, but more subpoenas for information, more subpoenas of phone records – whatever tactics [Attorney General Alberto] Gonzales and the Justice Department can come up with, they will.”

Hartman said a Congress led by Democrats will generally be more supportive of press freedom, and may even be open to passing a federal shield law, such as the Free Flow of Information Act sponsored by Sen. Richard Lugar (R-Ind.). Hearings were held on the bill last September, but “Congress might pass a federal shield law, but Bush would veto it under present circumstances,” Hartman wrote. “If he decides to govern from the middle and try to repair his public opinion ratings, Bush might allow it.”

But Rubin disagreed, noting, “[T]his is an issue that the Senate and the House have considered regularly since 1972, since the Branzburg case. So that’s almost 35 years ago, they haven’t done it yet. The situation is now far more complex than it was in 1972, now that you have online journalists and bloggers, which raise definitional issues. The mood of the country is not nearly as supportive of journalists as it was back then. The Congress has so much else on its plate this year, and it’s likely to be a highly contentious place that I just don’t think this is going to rise to the surface as an issue to consider. For all of those reasons, I would be shocked if a federal shield law was passed next year.”

In fact, according to a blog entry by CBS News legal consultant Andrew Shelton, Lugar’s bill died in committee last year precisely because Justice Department lawyers wanted to be able to compel reporters’ testimony in the forthcoming trial of Lewis “Scooter” Libby, who is charged with perjury and obstruction of justice in the illegal disclosure of the identity of CIA operative Valerie Plame.

In the area of copyright law, while big changes are not expected, there are still “many issues, both in terms of journalists reproducing content from copyrighted sources and, more significantly, having their work reproduced without permission,” said Jon Garon, Dean and Professor of Law at Hamline University School of Law in St. Paul, Minnesota. Those issues range from common internet practices that can expose journalists and bloggers to charges of copyright infringement to steps that online media producers may need to take to protect their work.

For example, bloggers frequently embed video or audio from sites such as YouTube or Odeo. But Garon said that even when the original source of the content is acknowledged, those bloggers may still be subject to charges of copyright infringement. While portal sites such as Google Video require that people uploading video to their site attest to their rights to the content they post, Google can’t guarantee that the posters are telling the truth. Someone who republishes that content without a demonstrable effort to prevent infringement can still be sued, Garon said.

Of course, most journalists use copyrighted material under the “fair use” provisions of U.S. copyright law. Those provisions allow for the republication of small portions of a copyrighted work for such purposes as news reporting, comment or criticism, or classroom teaching. The fair use doctrine has a long and venerable legal history, but Garon warned “the parameters of fair use are inherently fact-specific.” Further, as OJR reported last February, some experts are concerned that the improper use of cease-and-desist letters by copyright holders has caused online content to be removed.

According to Garon, one copyright issue that caused some controversy in 2006 will likely be ignored in 2007. That’s the law governing “orphan” works – works published before 1923 for which there’s no apparent copyright holder. Under current law, these orphan works are still under copyright – and anyone who uses them risks a lawsuit. In 109th Congress, Rep. Lamar Smith (R-Tex.), then chair of the Intellectual Property Committee of the House of Representatives, introduced the Orphan Works Act of 2006, which would permit their use when it can be demonstrated that a good-faith effort has been made to contact the copyright holder. Under fire from organizations representing professional photographers and others, Smith ultimately withdrew the bill from consideration, despite support from the American Library Association and others.

As to ownership issues, according to Hartman, “deregulation that would result in the lifting of cross-ownership restrictions is less likely to happen as Democrats are less comfortable with media conglomerates. Yet Democrats might support legislation that would make it easier for newspapers to survive and allow cross-ownership in circumstances where the newspaper would fail otherwise.”

Bloggers faced new legal challenges in 2006, both in the United States and internationally. Josh Wolf landed in federal prison for refusing to turn over unpublished video of a demonstration to a California grand jury. Hao Wu, who was imprisoned for five months by the Chinese government, apparently in connection with video that he was shooting for a documentary about underground churches in that country. Libel suits against bloggers are on the rise. And in December, an Australian court ruled that linking to copyrighted sound recordings can be illegal if it makes it easier to gain improper access to that material.

For Robert Cox of the Media Bloggers Association, these developments illustrate that many bloggers perform the same newsgathering functions as professional journalists, and thus require the same level of education, access and legal protection. His organization has spearheaded a training and certification program that would ensure that bloggers understand and adhere to high legal and ethical standards. MBA has negotiated agreements that will allow certified bloggers to obtain press credentials to cover such events as government press conferences and briefings.

Finally, “there’s something that’s extremely important in all of this, and it almost never gets talked about, Cox said. “Let’s start with this: Freedom isn’t free. If you’re going to publish – and bloggers are publishers – and you can’t back up what you’re writing with lawyers and resources to pay for all of that, you’re not going to last very long.” That’s why, Cox said, the MBA is negotiating with the insurance industry to offer liability insurance that bloggers can tap in the event of a legal fight. “As blogging and citizen journalism develops over time, you need to have access to this kind of support.”

Using Internet publishing to drive book and freelance sales

About six years ago, wine critic Natalie MacLean discovered that text-based e-mail was an efficient way to share the articles she published in regional magazines with colleagues and friends. Thanks to the grassroots nature of the Web, that small group of people began to forward her e-mails to other interested wine buffs until the demand for her current and archived articles became big enough to launch a website, Nat Decants ( Now, paired with a sophisticated newsletter 60,000 subscribers strong, this heavily-trafficked, multimedia-friendly and database-rich website has helped her to foster a dedicated audience that extends around the globe.

MacLean credits this online community with both enabling her to increase her opportunities in print and for creating a built-in audience for her new book, “Red, White and Drunk All Over.” With the fresh perspective of her recent excursions on a book tour, MacLean chatted with OJR about the ways the Web has created a synergy that expands the voice of this successful, independent wine critic.

Online Journalism Review: Like many independent online journalists, you started your career in the print world. How did the Web become an important medium to expand your audience and distribute your work?

Natalie MacLean: When I was [exclusively] a print journalist and many of my articles appeared in city-based magazines, friends and colleagues who didn’t live in the that particular city couldn’t read the article or buy the magazine on the stand. I retain the copyrights to my work, so I started by e-mailing about 25 folks the articles, which they would forward. Soon there were 200-300 people who were getting these articles, just through text-based e-mail.

OJR:So what point did you realize you needed to maintain your own website?

MacLean: About a year out, when people who joined [the e-mail list] started asking how can they could get all of my previous e-mails. So every time someone joined, I’d be sending 30 e-mails, to pass along all the back issues, so to speak. I thought this is getting silly; I better archive these somewhere, so that’s the birth of the website.

OJR: Do you have any technical knowledge, and did you design the site yourself?

MacLean:Yeah, at first I was doing it because I used to work for Silicon Graphics in California and my focus was the Internet. I loved HTML but I’m no wizard and my skills quickly became very rudimentary compared with where websites were going. It wasn’t long before I hired a webmaster, then things just kept evolving. The newsletter kept growing, the website’s content and functionality kept growing, and I started using forms to sign up for the newsletter.

OJR: Why do you think that niche topics such as yours do so well online?

MacLean: That’s [a reference to] the long-tail theory from Wired Magazine. I just love that theory. There are probably millions of wine lovers out there from all around the world and the brilliant thing is that we find each other on the Internet. So I get stories from wine lovers everywhere, from the night nurse at the emergency ward in Saskatoon to the water reservoir manager in Tulsa. [I’ve heard from] someone in Afghanistan who is making wine in his basement- I think it’s illegal! The Internet is efficient, and it’s also–I put this in quotes–cheap. It’s not cheap to make a good-looking website and to have forms that work and links that don’t go dead, but still I could never reach all of these people in print, cost-wise or time-wise.

OJR: You have a distinct, humorous tone to your writing that makes something as daunting as wine selection more accessible to those of us who aren’t sommeliers. Does your writing voice change online? Can you adopt an even more casual or conversational tone?

MacLean: Yeah I think so, although I know 78 people whom I call “Wine Lovers for Better Grammar.” They e-mail me every time there’s a misplaced comma. It’s like this giant editorial board. So it’s that contradictory thing of being relaxed and at the same time having an obsessive level of attention to detail, which is fascinating and helps me clean up my work in print.

OJR: You both write and edit your work, so how do you ensure accuracy when you source and cite information? You’re saying your readers call you out, and not just on grammatical mistakes–

MacLean: But on other things too, yes. They’ll correct anything. I once wrote an article about kir royale—a drink where you infuse any champagne or sparkling wine with the liquor Cassis–that has a black currant flavor. The black currants are famous around the Dijon area of France in Burgundy and I had misspelled a street name. Someone from Dijon contacted me and said that street is close to where I live, and it’s spelled this way.
I get far more corrections online so the feedback has been far more powerful than the print feedback.

OJR: What tool do you use to distribute the newsletter and what does it tell you about who your audience is and how to engage them?

MacLean: It’s called It’s a front-end tool and a back-end tool. I think the interface, the aesthetics look beautiful, but really the power is in the database and the reporting tool. It will tell me how many people have opened my newsletter and I can also see who has clicked on what link.

OJR: Can you tell anything about the user demographic?

MacLean: I can tell what topics are most interesting to people by the open rate and which links are most interesting to people. I stay pretty high level, but it’s only because of the time I have to devote to this sort of thing because I have a full-time journalism slate of jobs for print and then I’m just coming off the book.

I do find it synergistic. Every column I write in print, at the bottom there’s a tag that says for Natalie’s free newsletter, visit Then, of course, I use the newsletter to help sell the book, then point the book to the website, so I make sure that they’re all linked all the time. These days–especially if you’re trying to sell a book–you have to bring the audience, your readership, with you. [Book] publishers [tend to] spend very little on marketing, so you’re the one who has to develop your readership and then keep communicating with them. If I can’t pump out a book every year or two, at least I’ve been communicating with my readers [online] every two weeks in the interim and I hope they’re around the next time a book comes out.

OJR: Your site offers a modest selection of streaming audio and video. How do these multimedia elements advance the functionality of your site?

MacLean: I think people love to watch TV clips and listen to radio interviews, and people [who visit my site] are clicking on them. It’s an expensive form of information because I have to pay for extra bandwidth for no real monetary return. But now I’m starting to post video and audio clips that are interviews about the book.

OJR: So it also becomes a marketing tool–

MacLean: Yes, absolutely. To me it’s part of a multimedia-rich site, and that’s what I want to provide to the best of my budget and the best of my ability.

OJR: You actively encourage user feedback throughout the site. How do you deal with the volume of response and maintain this intimate relationship with your readers?

MacLean: Well, I get a couple of hundred e-mails a day, but a lot of them are questions that I get over and over again, so I’ll refer people to my FAQ. I think it will get to the point where I can’t [respond to everyone] because I have to earn a living and write my columns, but I like the feedback. I encourage it and welcome it and it’s helpful so I try my best to respond to people.

OJR: How do you select which articles you feature on your website or include in the newsletter?

MacLean: I’m more global in my approach. Now I think about which topics will I take on in print that can be repurposed, so it affects what I choose to write about in print and get paid for. In the past, I selected topics such as best restaurants in Ottawa that are really only relevant to people who live in Ottawa. Now I’m more likely to choose a topic like how to choose from a restaurant wine list that everybody can relate to, no matter where they live.

OJR: You run some Google ads, but otherwise ads aren’t featured prominently on your website.

MacLean: It [earns] three bucks a day for Google ads. That won’t even buy cheap wine! I’m going to look at adding advertising in the next year for related products and services that I think are reputable. I won’t be personally endorsing them. It will be clear that they’re ads and I’ll have someone else handle the booking, payment and invoicing so if a winery wants to advertise, I’m not the one negotiating ad rates while they’re also sending me bottles to review.

OJR: Finally, can you recommend some ways to choose a great holiday wine?

MacLean: Sure! All of my wine picks are on my website. It’s also a matter of your budget and whether you like wines that are full-bodied, medium or light. Develop a relationship with a knowledgeable person at your local wine store and ask what they’re excited about. Also, you can buy a mixed case of 12 within your budget and experiment. Try a new one each time you want to crack open a bottle and I’m sure you’ll find at least two or three that you really like.

Top mistakes made by new online publishers

Perhaps you’ve heard the horror stories: You can’t make any money publishing online. No one does any original reporting on the Web. The blogosphere is nothing but egos and spam.

There are two main reasons why people repeat such pessimism:

a) They don’t know what they’re talking about and frustrated with the Web.
b) They DO know what they are talking about and don’t want any new competition.

In the spirit of holiday giving, we present the top mistakes made by people in group (a). If you are worried about your future in the print or broadcast news industry, don’t be afraid to envision a future publishing online. Just beware of the traps that have snared many who have gone before you.

1) Doing it for the money

On the Internet, passion trumps professionalism. Yes, smart, disciplined online publishers are making money. It’s to be expected, with the billions of dollars advertisers are now spending online every year. But that can’t be the dominant reason you publish. Readers can smell a publisher who is trying to milk the market and will seek instead someone who publishes for the love of his or her subject. The Internet offers passionate, knowledgeable sources on every topic imaginable. You need to be one of them – not just a journalist with a newspaper buyout package and a business plan.

Over the past year, I’ve spoken with at least a dozen newspaper-dot-com executives who’ve expressed frustration that their organizations are now playing “catch-up” to amateur niche media due to their company’s obsession with maximizing profits, in part by not funding new projects without immediate revenue attached. That policy’s left too many newspapers with seemingly “safe” but overly broad, voiceless websites that fail to engage the reading public, just like their print parents.

2) Casting too broad a net

Pick a topic, whether it be a business, hobby, field or neighborhood, that you know well and can write about with authority. One of the conceits of the news industry is that reporters do not need to have specialized training or knowledge of the topics they cover – they just ask questions and let their sources provide the information.

Of course, this thinking provides a convenient excuse for newspapers too cheap to pay for reporters with real world training in their beats. Don’t let it infect your website. Otherwise, your site will read like too many newspaper stories – poorly informed, unfocused and contrived.

Click through Tom Grubisich’s recent analysis of “citizen journalism” websites for examples of local online news done right… and wrong.

People are ditching newspapers for the Web for a reason, and it ain’t the ease of reading on a computer screen, or even to save 50 cents a day. Readers crave authoritative voices that can guide them through the information overload of modern life. You can be that voice. But you have to know your topic, and stick with it.

3) Not being humble

By this time, Internet readers have learned that communities know more about a given topic than any single individual does. You might be new to publishing online, but your audience is not new to reading the Web. They’ve grown accustomed to interactivity. Sure, you must present yourself as an expert – you must *be* an expert to retain any long-term credibility online. But you must embrace your readers’ collective expertise because part of your new job will be to draw out that superior knowledge that many of your readers have.

In reporting a story for the Web, the interview process does not end with publication. When writing a piece, always include an invitation for knowledgeable readers to add more to the story. Writers who fail to do this invite suspicion that they are more interested in promoting (and protecting) their own point of view, instead of allowing their work to compete in the marketplace of ideas.

4) Taking spam personally

Too many beginning publishers give up on interactivity once the first wave of spam hits their comment section, e-mail in box or discussion board. Don’t take it personally. Look at spam and trolls the way you look at a flu virus: a simple, unthinking annoyance that’s looking for a receptive host.

Like a traveler going abroad for the first time, too many beginning Web publishers lack the necessary immunity to the Internet’s ills. Immunize yourself by either installing filtering software or requiring e-mail verified registration to submit content to your site. If something does slip through, delete it and forget it. Don’t kill the patient to take out the disease.

5) Telling the world what you are doing… before you actually do it

Okay, this could be filed under mistake #3, above. But “old media” veterans seem especially vulnerable to this online faux pas. The old media model for starting a publication required you to raise money to hire a staff, solicit advertisers and print the book. Online, you don’t need any of that. So why issue the press release before you have something to show?

I’ll defer to Markos Moulitsas Zúniga’s analysis of Jim VandeHei’s new website:

There’s one big lesson I learned in my Silicon Valley days — the more grandiose the talk when launching a venture, the more ill-will it generates and the more knives come out. Google came out of nowhere to take over the internet, despite grandiose claims from the likes of Microsoft. We all saw what happened to the pathetic Pajamas Media, while Daily Kos has quietly risen into a position of prominence. That’s why I’m being low-key in my projects for next year. They’ll be quietly launched. Some will fail, some might succeed. It’s better to let success do the talking than being a boastful oaf before your project is even off the ground.

Flying a while under the radar also allows you the freedom to try new things, without the fear of public humiliation.

6) Throwing money at your site

The economics of online publishing support and reward individuals. Obviously, large businesses can flourish online. But almost without exception (think Google, Yahoo and even MySpace), they started small, established themselves before seeking millions in venture capital and built through strong reader support.

When I talk with people who have had success making money from online content, I see a common attribute: an independent writer who leads a strong community that generates hundreds, if not thousands, of pages of informative, compelling content.

What I don’t see is someone who first hired a staff, including editors, reporters and ad reps. Nor do I see someone with a large marketing budget, buying advertising in offline media to draw attention to their site. In fact, when I speak with people who followed that path, I inevitably hear complaints about how “no one’s making money online,” and a series of excuses for why their venture failed.

Make sure you have enough in the bank to support yourself for a few months while you get the site up and a community going. Increase your chances for long-term success by denying yourself the extravagances of additional reporters, editors or a support staff until you understand what you truly need, and have banked the money to pay for them.

7) Using misleading traffic numbers

Every Web publisher wants to measure his progress. Traffic numbers provide a real-time measure of your site’s popularity, which can later translate into revenue. But too many rookie publishers (and online advertisers) get a distorted view of a site’s popularity because they don’t understand the vocabulary of online traffic measurement.

a) “Hits:” This statistic is worthless. A “hit” is nothing more than a request to a Web server for a file. The problem with this statistic is that a single webpage can include dozens of files: the page itself, plus every stylesheet, external script, logo, graphic file and photo displayed on the page. A webmaster can double the “hits” for his site simply by doubling the number of graphics used on his pages.

b) “Page views:” This statistic is better than “hits,” but still easily manipulated. The trouble with page views is that a huge percentage of traffic online comes not from human beings, but automated agents. Search engine spiders, spammers’ robots and clipping service agents can account for more than half the traffic on many websites. If a publisher looks only at his server logs and does not filter all automated agents from his report, he is grossly overestimating his site’s popularity among actual people.

c) “Unique visits:” This is a better test of a site’s traffic. A spider might view 1,000 pages when it comes to a website, but it will count as only one visit. The best publishers still filter automated agents from their unique visitor reports, but even if they do not, this statistic provides the best “apples-to-apples” metric for comparing website popularity.

Don’t rely on server logs to measure the popularity of your site. Install some tracking service on your site, at the very least Google Analytics (which is free), to get a real picture of where you are. And educate potential advertisers about these differences, so that your competition can’t land a sale with their bogus “hit” statistics.

8) Unrealistic goals

Use these lessons to remain sober as you embark on your Web publishing adventure. Embrace the Web’s interactivity and make it a resource to enliven your reporting and writing. Don’t expect to get rich, famous or win awards. Focus instead on building a relationship with your readers that develops a useful publication, filled with engaging information that they will not want to do without. Don’t expect any of this to happen overnight, either. Use realistic traffic numbers to project your ability to earn revenue (or attract financial backers). Then keep your expenses below that level… or be willing to admit that your website is a cash-draining hobby.

Let’s hear from other online publishers! Add your advice using the comments button below.