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Diversity of Journalisms. Proceedings of ECREA/CICOM Conference, Pamplona, 4-5 July 2011
All the legal notices attribute liability for what is emitted by the users to the latter. That
is, they include clauses of exemption from liability, like this one from El País.com: “In
no case whatsoever, shall EDICIONES EL PAIS be liable for the opinions expressed
by the users through the forums, chats or other participatory tools.” This is a case of
complete exemption from liability. While the media establish mechanisms to avoid legal
problems in their comments, through a priori or a posteriori filters, this clause attempts
to guarantee complete juridical security. Other media, like LeMonde.fr, speak of
“limitation of liability”. Others, like Prisacom, the company that publishes El País.com,
go further and make public an “exclusion of guarantees and liability” for all of those
unintentional damages that might be caused to the user. Other media employ the term
Disclaimers of liability, more in accordance with the Anglophone juridical tradition.
Intellectual property
The legal notices or disclaimers unfailingly refer to the rights of intellectual and
industrial property 85 , which are presented as exclusive with respect to the user, that is,
rights of exclusive ownership of the juridical entity (the company) that publish them. In
their turn, the majority of the legal notices or disclaimers also treat the user as a
producer of content and, therefore, as a subject protected by the laws of intellectual
property, which in some cases includes the automatic cession of rights to the company
to which they send their comments.
By assuming the exclusive rights of reproduction of all the content in their websites, the
companies prevent the diffusion, with or without a desire for profit, of this content,
which can only be reproduced, in any case, for strictly personal use. This prohibition
also extends to industrial property, such as logotypes and trademarks.
With respect to the user generated contents, some media, like NYTimes.com, dedicate
a whole section to this. They include both comments and services like TimesPeople or
even reader reviews, or critical pieces written by the users. Norms that in other media
are treated more as ethical recommendations, are here elevated to juridical norms.
Besides the time-honoured rules of respect and the prohibition on sending content that
is pornographic, abusive, xenophobic, etc., a non-commercial intention on the user’s
part is established. Nonetheless, the company assures itself a license on what the user
sends in, through an explicit clause.
85 This distinction exists in the juridical tradition of continental law, but not in Common law. Author’s
rights (and of the performer, as well as some other sui generis rights) are recognised by the laws of
intellectual property in France, Italy and Spain, and patents, trademarks, etc., are protected by the laws
of industrial property, which provide more periods of protection; while in the United Kingdom and the
United States the term “intellectual property” covers both copyright and the whole system of protection
of patents and trademarks.
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