The legal notice conundrum

At its post-Town Meeting annual meeting, each Vermont city or town selects the “newspaper of record” it will use for the next year to print public notices, as required by law, from warnings of meetings to probate notices to tax sales, foreclosures, advertisements for bids and hearing notices.

But as the traditional hometown newspaper has often added, or even been replaced by, an online edition, the conventional definition of a newspaper is being challenged, and that in turn raises the thorny question of whether a news website can act as a newspaper of record in addition to or instead of an ink-and-paper one.

Select boards must weigh the sizeable numbers of readers who do not consume their news via internet or mobile app, for whatever reason, against the predominance of the internet as an information source for the digital consumer. The numbers of readers who live outside the print edition circulation area, especially if the paper is not available by subscription, is also a consideration.

The law has been behind the 8-ball when it comes to establishing the definition of “newspaper,” resulting in much tearing of hair and gnashing of teeth among publishers vying for the legal notices contracts.

While Vermont law 1 V.S.A., Sec. 174, Notice by Publication, specifies that a newspaper carrying legal notices must be either local or statewide (vague enough), from law dictionaries to law schools, it seems there is no consistent legal definition of a “newspaper.” Custom and practice say a newspaper is – as its name says – printed on paper. But technology has its own jargon, in which any form of broadcast communication becomes “media.”

Further, in Vermont, the state has kept a light touch on how towns interpret their duty of disseminating public notices. The lack of clearcut definitions and protocols puts the internet news sites in an adversarial relationship with the print papers and destroys the collegiality and mutual respect within the news community. Unless they can resolve their differences, the final result could be that the state will step in more forcefully.

Senate Bill 97 may be just such a move. If it passes, it will take effect January 1, 2018.

Titled “An act relating to the publication of State, county, and municipal notice on electronic news media” and sponsored by senators Pollina and White, the bill keeps the language of Sec. 174 but adds news sites, to be designated by the Secretary of State. Notices “may” be published online but notices about property “must” be published in a paper edition.

The bill has further stipulations.

As with the loose understanding of “newspaper,” S.97 defines qualifying “electronic news media” almost as loosely, as websites that are “dedicated to Vermont news … regularly accessed and used by the people of Vermont,” published primarily in English, and accessible to the “majority” of residents in the county referenced in the legal notice. Further, the website must be “able to accept and publish official and other notices” and it also must “regularly” publish items of general interest. Notices must be clearly labeled, stored and easily searchable. Records must be kept and the notices must also be stored in “a physical form,” following the current practice with newspapers.

But even with these stipulations, the term “electronic media” is so general as to be meaningless. Why not simply use the term “online newspaper?” After all, e-zines and the reputable online news outlets are essentially facsimiles of print publications. S.97 does not state what kind of “electronic media” would NOT be allowable. The door is open for unqualified websites to solicit (and bill for) legal notices illegally, requiring yet another legal opinion, if not expensive litigation.


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