Interviewing minors who have been bullied by their peers presents a potential minefield for journalists attempting to report such stories.
At a Dec. 6, 2023 webinar hosted by Ethnic Media Services in collaboration with ProJourn — an initiative of the Reporters Committee for Freedom of the Press — attorney Thomas Burke, a partner with Davis Wright Tremaine, walked reporters through the constraints of interviewing minors, and the potential legal challenges that might arise.
“You’re working in a gray area because minors can’t legally consent. And the law just says that they don’t have the capacity to do so,” said Burke. “So how do you work in this gray area? Well, to me, the biggest takeaway from everything I can tell you is that you need to be sensitive to the reality that you’re talking with individuals who may have a very private story to tell.”
Be Sensitive
“Reporters may do a great job of having kids feel comfortable that they can talk to you about their situation. But in terms of actually reporting it, if they are telling you something that is potentially going to identify them and put them in a vulnerable position where they can be physically bullied again or physically hurt, it’s something that you need to be very sensitive to,” said Burke.
Parents can object to an interview their child gave without adult consent, said Burke, noting that with the advent of social media, an interview can turn up on a variety of platforms other than the one on which it was originally broadcast, putting vulnerable children at greater risk.
“The law has protections for minors for a reason,” said Burke. “Think about the implications of your reporting. “Is it potentially harmful to the minor or get them into more trouble or get somebody else into trouble?” “This doesn’t mean that you can’t report on the crime. Just like it doesn’t mean that you can’t do an interview, report on bullying that takes place, but just not identify who’s involved,” he said.
Parental Consent
Getting consent from parents is the gold standard, but even then, there are potential tripwires, said Burke. “Are the parents going to want to see what you’re going to write? Are they going to want to edit what you write? Are they going to say you can report this, but you can’t report that?”
“You still have to be sensitive about what you end up reporting and how you report it. Even with the parents’ consent, if you have something in there that violates the minor’s privacy, and would be very embarrassing and private, that could potentially be a privacy claim,” said Burke.
However, if information about a child victim or juvenile suspect is already in the purview — say if a local district attorney or a school district has released the name — reporters can also use the name of the victim or suspect, said Burke.
Journalists’ Protection
In California, reporters are protected by the ‘Fair and True Report Privilege’ act. “It’s as strong of a protection as you can have that allows you to fairly and accurately report from public records or the statements of elected public officials and public officials like school officials as to what officially happened,” said Burke, noting that reporters who use such documents, even if they prove to be untrue in the end, are protected from libel if they cite those official records as the basis for their reporting.
“As long as it’s found in those public records or those court records or told to you by public officials, you are going to have a very strong legal protection,” said the attorney.
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