On April 20, The Black Sheep, a college media and marketing company, posted a controversial video on its Facebook page depicting Ole Miss students unknowingly being filmed around campus. The video titled “High Times at Ole Miss” comes with different captions giving fictitious names and ages of the individuals along with a description of how they are celebrating 4/20, also known as “weed day.”
With over 5,000 views currently, this video brings to question the legal implications of recording people without their knowledge, publishing false content about a person, and following the university creed “I believe in respect for the dignity of each person.”
With articles titled “United Airlines Lucky Rabbit Foot Sacrifice Backfires in Spectacular Fashion” and “The 3 Best and Worst Places To Chain Smoke at Ole Miss”, The Black Sheep boasts a less traditional form of journalism.
Made up of “strong, shrewd, and drunk hard-hitting editorial teams that produce daily comedic content people love,” according to its website, The Black Sheep has acquired a strong following of college-aged students.
In order to understand the situation more in depth, representatives from The Black Sheep, attorneys, students who were featured in the video, and media law professors were questioned about the video.
Mackenzie Harding, the national campus editor for The Black Sheep has not seen any negative comments or backlash about the recent video.
“The feedback I’ve seen has been great, our goal is never to deliberately offend people, so we try to keep it lighthearted and fun,” Harding said.
Although the website never intended to offend the people involved, some students feel that it is disrespectful and an invasion of privacy.
Daniel Dubuisson, a junior journalism major from Pass Christian, Mississippi was featured in the video and was not made aware of his involvement until a friend sent him a link to the Facebook page.
“I had never heard of The Black Sheep before, I didn’t know what they were all about and so I clicked on it and I was immediately thrown off by the headline,” Dubuisson said.
“I kept watching and I just got very upset that someone would do this to people that they didn’t even know on Snapchat and that social media would give them the ability to do this with absolutely no repercussions.”
“I was very offended and I did not appreciate that someone would do this and not even have the courtesy to let me know or ask for permission.” Dubuisson said.
While Dubuisson found the video offensive, and it was taken without his knowledge, does he have enough evidence to take legal action on the grounds of slander or libel?
To answer this question, one must first understand what libel and slander are.
According to laws.com, the elements of a cause of action for either libel or slander include four things.
The action being addressed must be a “1. defamatory statement; 2. published to a third party; 3. which the speaker knew or should have known was false; 4. that causes injury to the subject of the communication.”
When asked about the video, Charles D. Mitchell, assistant dean at The Meek School of Journalism and New Media and Communications Law professor said that there are two legal contexts that are raised: privacy and libel.
“Recording or photography of any person and activity in a public place is not considered private,” Mitchell said. “People and events that can be seen by any passer-by, even if embarrassing, can be recorded and placed on any media platform.”
“On the other hand, there are plenty of places were people have a reasonable expectation of privacy, such as within their homes. So as far as privacy is concerned, the issue is where the people were.”
With that being said, because the students were in a public place and not in the privacy of their homes, then the person who recorded the video is not at fault when legally talking about the topic of privacy.
But what about publishing false information?
“Libel,… is the use of a person’s name or identifiable image along with a statement of fact that is both false and defamatory that injures reputation,” Mitchell said.
“Sometimes ‘statement of fact’ can be an implication. For instance, video of an unidentified student sitting on a park bench with a six-pack of beer beside him, would not be a violation of the student’s privacy,” Mitchell said. “If published near the headline, ‘University seeks to aid student alcoholics,’ would imply strongly the student is an alcoholic, which might make people think less of this student.”
“The far more relevant point is whether the video, recorded in a public place or not, falsely indicated strongly enough that depicted students were using illegal drugs or illegally using legal drugs,” Mitchell said.
While the video may be considered a defamatory statement, and it was published to a third party, there is a question of whether the creator of the video knew or should have known that the statement was false. In addition, there has currently been no recorded injury from the subject.
In other words, you can’t just say that the video hurt your feelings and that it might look bad if someone recognizes you in it. One must show that actual damage was done. For example, if Dubuisson had been fired from his job after his boss saw the video because he thought that Daniel was doing drugs, then there would be proof of injury to the subject.
David Greene, Civil Liberties Director, Senior Staff Attorney, at the Electronic Frontier Foundation also weighed in on the video.
“In Mississippi, only one party a communication needs to consent to a recording. Therefore, the recording is not illegal if any one of those students that was part of a group communication consented,” Greene said.
“The law only applies to recording audio. If the video is just images, the law does not seem to apply. Also, in some states, recording is restricted only if the activity recorded takes place in a private place, rather than, say, in a place open to the public,” Greene said.
“I am not sure if written captions in a video that imply a false statement would be treated as slander of libel,” Greene said. “It appears that Mississippi treats oral statements broadcast via recorded video to be slander. But it treats all written statements as libel.”
“If the video does in fact imply that the students were using drugs and they were in fact not doing so (that is, the implication was false), then the students about whom the assertion was implied, may have a claim for defamation (be it libel or slander),” Greene said.
“But this is a completely separate issue from the recording-without-consent issue. It won’t matter for the purposes of a defamation claim whether the video was illegally made or not. But the assertion will have to be false,” Greene said. “That is, the students will not have a viable claim if they were in fact under the influence.”
The Division of Student Affairs at the university was asked about their reaction to this video and did not comment.
Harding said that due to the video’s success and those like it, similar video are likely to follow. The original idea for a similar video came from a Black Sheep student at another campus earlier in the semester.
She admits that like many other media companies, social media plays a vital role in getting their name and content out there.
“We maintain local Twitter and Snapchat accounts on each campus to keep a consistent presence,” Harding said.
With the importance of social media constantly increasing, student’s privacy can be expected to dimension, at least to some extent.
Rachel Ishee 