In the last installment of this series, we’ll look at some of the challenges that young business journalists face in today’s media landscape. A common theme running through all five installments is the recognition that avoiding errors is a journalist’s first responsibility.
News moves faster, farther and wider than ever before, and given the ever-increasing volatility of markets, the effect of incorrect news reporting can have shattering consequences: not just on the share price or business prospects of the company being written about, but on the media organization that faces legal liability and the exorbitant cost of legal defense. This segment recaps some of the common sense but commonly forgotten basics of media law.
Five things a journalist should always do
In wrapping up this series for UNC-Chapel Hill, I thought it might be useful for journalists both young and old to get a recap of some of the fundamental practices and pitfalls that expose a reporter or publishing organization to embarrassment, loss of credibility, or legal liability.
1. Always be paranoid about facts. Factual accuracy is the building block in the DNA of journalism. As a purely legal matter, falsity is the sine qua non of a defamation claim. While in non-U.S. jurisdictions and even under some rare American variations of privacy law, truth is not always an absolute defense, falsity remains an element universally required by a plaintiff to allege and prove in a libel case. Here is where the old maxim “show, don’t tell” reveals its value.
Understanding the difference between an allegation and a provable fact can keep you out of trouble. If an executive tells you that a former employee had embezzled money, absent documentary evidence such as a conviction, the most that you could say is that the executive “said” or “claimed” or “asserted” that the employee was a thief. Letting people’s words speak for themselves is the difference between reporting what has been said in a public controversy and adopting those allegations as self-evident truths. The former provides reporters with a libel defense, the latter may expose the reporter to legal liability. The more citation, the more attribution you show, the lower the likelihood of being accused of adopting a false and defamatory statement.
2. Always take demands for corrections or retractions seriously. The public perception of journalists has long strayed from the heroic time of Woodward and Bernstein, and there is a common meme that reporters are arrogant and detached from their readers.
Many states have retraction or correction laws that allow that in the event that the news organization makes a correction within a certain time period, the plaintiff is limited in the scope of damages if they may be able to obtain, if at all. These laws encourage editors to take an independent look at an alleged error and avoid liability if there is a reasonable question that the statement complained of is false and defamatory.
Remember that many libel suits proceed to trial because the statement at issue could be reasonably read by an ordinary reader to imply a defamatory fact about the subject.
It is also worth noting if your publication is subject to European or Asian jurisdiction that many nations have “right of reply” laws that give a story subject the right to publish a counterstatement. In many nations, even if your story does not contain an error, the failure to provide an opportunity to respond after publication is a separate cause of action for which you may be liable.
In practical terms, many libel suits can be avoided even when both sides disagree strongly about the accuracy of an underlying fact or what a statement means by utilizing updates with additional comment, or letters to the editor allowing the story subject an opportunity to tell their side of the story.
3. Always remember that small details count. If you write a hard-hitting piece about a company that is misbehaving, even if the thrust of the story is correct, their lawyers and public relations staff may beat you over the head with the small details that you got wrong. Spellings of names, places of birth, locations of offices or events, and other facts that may seem trivial can be stacked up by a plaintiff’s lawyer who wants to get you in front of a jury and tell them “this reporter couldn’t even spell my client’s name correctly; how are we supposed to believe the rest of his story?”
Famed television host Johnny Carson succeeded in winning a libel trial in a case where a tabloid paper reported on Carson’s marital troubles. Noteworthy for the purposes of this issue, the Court in Carson v. Allied News found so many errors (none of which out of context would be actionable, such as where the Carsons lived) but in totality, combined with bad sourcing, held that the “Defendants acted with reckless disregard of whether the inaccurate matters published were false or not. Plaintiffs have met their burden of proof and have demonstrated that defendants acted with actual malice.”
4. Always ask yourself if you are missing something. From the reporter’s perspective, the meaning of a story may be plain, but it is too easy to be accused of “falling in love with the headline” and giving a plaintiff’s lawyer an argument to say that any reasonable reporter would have found out a mitigating fact that changes the meaning of the story.
Take the following hypothetical: you are writing about a new publicly traded company and learn that the founding executive had been charged with fraud in the past, but this was not disclosed to the shareholders of the new company. (This is defamatory not only because it implies dishonesty, but also is a violation of SEC rules requiring such disclosures, which is in itself a defamatory allegation). The executive declines to comment.
After publication, the executive comes back with libel papers in hand, and shows you that he was acquitted of all charges. The failure to follow through and ask yourself if he or she was convicted – not just charged – could be seen as negligence (the failure to do that which a “reasonable and ordinary” reporter would’ve done), or even “actual malice” if his lawyer can show enough facts to allege that you recklessly disregarded or purposely avoided learning and publishing the truth.
While it is true that the mere “failure to investigate” does not under constitutional law prove that actual malice existed, if the executive’s acquittal could have been found just as easily as the reports of his arrest, many judges will allow this case to continue to discovery (depositions, production of your notes, etc.) and may become just enough of an issue of fact to require you to go through the expense, heartbreak, and risk of a trial.
5. Always do your best to obtain a comment. The failure to provide a meaningful opportunity to comment can be fatal in some libel cases. Taking the hypothetical above, if the reporter had failed to contact the executive and seek a comment, the executive could very easily convince a judge and jury that “had the reporter called me, I would’ve told him that I was acquitted on all charges.”
Any legal advice that tells you that an opportunity to comment is not required under the First Amendment is shortsighted, in my opinion, because there is no guarantee that your case would not be tried under the mere negligence standard, which instead of requiring “knowing falsity” on the reporter’s part simply asks a jury to find whether you did that which a “reasonable” reporter would do. At trial, journalism professors and retired editors often appear as plaintiff’s witnesses who are all too eager to call you lazy or your work sloppy.
For those of us who have to deal with breaking news, this is particularly challenging because there is an inherent tension between the desire to be first with a story and our journalistic obligations to be fair and accurate. There is no rule of thumb other than try to be in a position where you can honestly tell a judge that the public interest in the story was so strong and immediate that the public needed to know now despite the executive or company not yet returning a phone call. The more serious the allegation, the greater the opportunity to respond should be shown. Remember to try to document any attempts to contact the story subject with a fax or email that fairly describes the question that you put to the story subject.
In addition, for those of you who work on digital platforms, the power of the update cannot be underestimated. Many libel claims are nipped in the bud when the reporter, unable to reach the story subject in the first take is able to update with comment later in the day. This not only moves the story forward, and serves the reader with more information, but helps establish a record of good faith to which a judge would most likely find favorable.
Five things a journalist should never do.
1. Never throw away notes that relate to a story that is being complained of. The question about how long reporters should keep notes and outtakes can be discussed for days. That said, the disappearance of a reporter’s notes after a story subject has complained or made a libel threat creates a very hard-to-defeat impression that the reporter never took notes in the first place, or worse yet, invented them. For a chilling story about how badly this can go wrong, read Murphy v. Boston Herald, discussed in greater detail here.
When a story subject calls or writes to you alleging that there is an error, if it appears serious you should strongly consider sending a copy of your notes to your newsroom counsel. He or she can review the situation and determine when it is safe for you to delete them.
2. Never pay for or promise something in return for information. There are several cases in which a libel case it is alleged that a reporter conspired with or even bribed a source to say defamatory things about them. In McCoy v. Hearst, The San Francisco Chronicle’s Lowell Bergman met with a convicted felon for a story about prosecutorial misconduct. When the prosecutor sued, the felon claimed that Bergman had promised to provide legal help to him in return for talking to Bergman.
The lower court judge hammered the Chronicle, saying that it was far too easy for a jury to find that the reporter’s source would say anything to get free legal help, and his being a convicted felon only added to his lack of credibility. Although that case was finally won on appeal, it is a cold reminder that because our story is as good only as our source, we have to protect a source’s integrity by steering clear of any possible claim that his or her speaking to you was a quid pro quo.
3. Never crib defamatory allegations from other publications without some fact-checking of your own. The legal doctrine of “neutral reportage” has not been adopted universally. This doctrine allows journalists to repeat defamatory allegations that have been reported in other newspapers or broadcasts. The thrust of this defense is that “we are not saying that Mr. Jones is a thief, we are simply reporting that The Daily Bugle said that he was.” Many courts have rejected this defense.
In Goldwater v. Ginzburg, Sen. Barry Goldwater of Arizona sued Fact Magazine for an article that called his psychological well-being into question. Although the magazine had done some independent research, a number of the sued-upon statements at issue were quotations from other news organizations. The judge refused to give the magazine a free pass for those statements, holding that:
“Reliance upon newspaper articles, books, and campaign literature, and upon accurate reprinting of another’s letter are only factors which, with other factors, are probative of whether the publisher of the cumulated material was motivated by actual malice when he caused the full material to be published.”
If a story is fast breaking and you are following another publication, any statement that “The Daily Bugle reported today that Mr. Jones is a thief” must at the very least be followed by an attempt to reach Jones and allow him an opportunity to dispute the report you are quoting. This is the bare minimum, and unless you independently have the provable facts that Jones is indeed a thief, in many circumstances courts are going to ask you where your independent verification efforts were.
4. Never disclose or discuss your editorial process with a complaining party. Reporters often get haranguing phone calls from tenacious public relations executives who want to second-guess your editorial decisions. Many will want to debate you about why their client was the story subject, or why you focused on one particular issue. Do not be drawn into debate about how and why you structured the story the way that you did.
Always be open to hearing about factual error, or to missing facts that may have changed the thrust of the story, but if you begin to disclose your editorial thought process you may be generating enough material for the story subject’s libel lawyers to argue that you had either a malicious intent against his client, or in the alternative that you purposely avoided what they will propose is the truth.
This is even more the case when it turns out that you may in fact have committed a factual error. The story should speak for itself about which documents and interviews are the basis of your reporting. Never answer questions about which documents you did or did not read, or any people you may have interviewed but did not appear in the story. These facts will almost certainly appear in a libel complaint.
5. Never forget your libel lawyer is there to help you be a better reporter and give you as much freedom as possible. The job of a libel lawyer is not to prevent things from being published. Good libel lawyers have to think like plaintiffs, and look for ways in which your story is going to be attacked and try to bulletproof those parts of your story.
When your lawyer grills you about how you know something, about where you obtained the document or raises questions of clarity, they are not trying to suppress your right to free expression: they are trying to protect you so that you can go on to win prizes, own a story, and keep out of trouble.
Lawyers work under a legally codified system that makes sacrosanct the conversations you and he or she have. While many states and the federal common law do not recognize a shield law, the privilege of attorney-client confidentiality goes far beyond any shield law. For this reason you must tell your libel lawyer everything about the issue at hand. Let them decide what is or isn’t relevant to your defenses, and let them decide about the evidentiary value of the document you are relying on or the credibility of the source if those issues come into play in a legal matter.
Charles J. Glasser Jr. spent the last 12 years as Global Media Counsel to Bloomberg News, responsible for litigation, ethical newsroom issues and pre-publication review, and was responsible for handling the work of more than 2,100 journalists on a 24-hour basis. Prior to joining Bloomberg, he represented a wide variety of news organizations including The New York Post, Readers’ Digest and NBC News. Prior to becoming an attorney, he was a journalist for 16 years. He is the author of “The International Libel and Privacy Handbook” and is currently a consultant on media law and corporate communications issues, and can be reached at charlesglasseresq@gmail.com or via www.charlesglasser.com.
