Quality publications build solid reputations on competent factual reporting and sage editorials. Losing your footing on these foundations for even one paragraph can expose you to legal liability and a loss of credibility. The resignations of top editors at the New York Times after reporter Jayson Blair fabricated information in stories demonstrate that no publication is immune to the consequences of poor reporting.
Online journalism is just as susceptible and in some ways is even more at risk. Online writers can be lulled by the ease of publishing and a feeling of anonymity. Mad dashes to publish quickly can lead to sloppiness or failures to double-check information. When you have a world-wide audience, you’re likely to have some readers who can truthsquad your reporting. So you can be sure that any missteps will receive unwelcome attention.
Online journalists and publishers need to adopt guidelines for fairness and accuracy, understand the legal terrain and set a course that reduces the risks of defamation.
Assessing the Risks
Weblogs, chat rooms, community bulletin boards and news blogs are rife with opportunities to defame someone. This happens because many people read the same forums, live in the same communities and work in the same business circles. After something defamatory is printed about someone, that individual may be shunned by former friends and business associates or, worse, may lose a job or business income. The person’s family may suffer, too.
The dangers are real. Consider a bad call by a referee at a local basketball game or an over-zealous parent at a local soccer game. It may be gratifying to take the person to task online, but the repercussions don’t justify it.
Once you blast someone, the injured person may be able to sue you if his reputation was harmed. A lawsuit could be filed where the injured person lives or work, or where the writer resides. Because the Internet is viewable world-wide, it is conceivable that multiple suits for defamation could be filed in many different states or even countries, although there is some authority to the contrary (see Young v. New Haven Advocate).
Understanding (and Avoiding) Defamation
To avoid defamation, journalists need to recognize it. Libel is written; slander is spoken. Although local laws define defamation differently, as a general rule, libel is an unprivileged, false statement of fact that is published and that injured a person’s reputation. Reporters and publishers get into trouble when the statement is published as a result of negligence or malice.
For the most part, online defamation will be determined by whether the journalist (and the website) is acting as a distributor or as a publisher of the offending content. A distributor simply hands out the publication, much like a paperboy. A distributor is generally not responsible for the content being distributed. A publisher exercises editorial control. By determining what content gets published, the publisher risks liability if the content turns out to be libelous.
Whether online journalists are distributors or publishers depends on what knowledge they had about the defamatory content and the extent of editorial control they exercised. Two leading cases illustrate the difference between being a distributor and being a publisher:
In Cubby, Inc. v. CompuServe, Inc. , the court found that the defamatory postings were done without CompuServe’s knowledge, that CompuServe did not have the technical means of policing each posting and exercised little or no editorial control over postings on its forum. Accordingly, the court determined that CompuServe was a distributor and found in its favor on the libel claim.
In contrast, Stratton Oakmont, Inc. v. Prodigy Services Co. helped define who is a publisher. In this case, Prodigy had a policy of manually reviewing all messages prior to allowing them to be posted. Prodigy used a program and its “Board Leaders” to remove messages that violated its guidelines, thereby controlling the content on the site. These actions, the court held, put Prodigy in the role of editor, such that it could be held liable for publishing the defamatory material.
Web editors and site owners should carefully weigh the pros and cons or monitoring their users’ comments. If you exercise little or no control over comments, you open up your site to spammers, off-topic threats and trolls (Internet users who purposely create discord on message boards). On the other hand, having an editor who reviews messages opens your site up to more legal liability. On the other hand, if you want to keep the quality of your content high in order to serve your readers better, review may be a crucial process.
Deciding which route to take is a bit of a balancing act. You will no doubt want to consider your readership, both in terms of who they are and who you are targeting, as well as the subjects under discussion. Controversy can raise its head anywhere, but some subjects are more prone to personal attacks than others: politics, for instance.
Rules for the Road Ahead
So, what should an online publisher, writer or editor know to reduce the risks of defamation? While these guidelines don’t constitute legal advice and merely scratch the surface of libel law, they may help you navigate these issues:
Consult a lawyer if a lawsuit looms. As soon as you are notified that a lawsuit is impending, get in touch with a lawyer who has expertise on libel law. Only an attorney familiar with the details of your case can give you the appropriate advice.
Don’t lie. A statement defames someone only if it is false. Stick to the truth and you should be fine.
Confirm facts. The author must engage in a thorough fact investigation. This means competent research, complete documentation and accurate attribution. The level of fact finding can play an important role in determining whether a defamatory statement was published with malice.
Understand the difference between private vs. public figures. The law treats private persons very differently than public figures. Publishing sensitive information or criticism about the President of the United States is probably not going to lead to a lawsuit. As a public figure, he is expected to have a thick skin, as well as ready access to the press to defend himself.
Similar information published about private citizens may put you in hot water. Unlike public figures, defamatory comments made about private individuals are not well protected by the law. Flaming the local soccer coach in a newsletter or posting comments about your former girlfriend’s sexual conduct are unprotected and libelous. Depends on whether it’s clearly opinion or statement of fact, right?? The leading case describing the difference between a public figure and a private individual is New York Times Co. v. Sullivan 376 U.S. 254 (1964)
A private figure only has to prove that you acted negligently. A public figure is required to show that you acted with so-called “actual malice” — that you published something knowing it was not true or that you exhibited “reckless disregard” for its truth.
Practice precision. Vigilant policing of the technical issues What do we mean by technical issues? is a must. Misquoting or taking something out of context is a sure way to get a letter or a phone call. Falsely attributing a quotation to someone is equally defamatory.
Play fair. A fair and balanced report is one that guards against bias and gives voice to the many stakeholders on an issue, even when the journalist personally disagrees with one of positions.
Fairness also means admitting your errors. Most states have a retraction statute that limits liability and any possible damages if the publisher makes a retraction or correction. Refusing to acknowledge an error or print a retraction or clarification can fuel legal action.
Editorial review. Having someone review your work before you publish almost always guarantees a better product. Some reviewers actually fact check; others may flag statements made in haste or written with an inappropriate or uncivil tone.