Breaking Down Media Law & Ethics in the Age of Online Publishing
When a mistake gets into a story, news agencies typically move quickly to correct the record.
Attorneys may join the conversation if a grievance reaches a particular level – libel (the story carries false accusations and it damages someone’s reputation) or defamation (true or not, someone’s reputation has been damaged).
Complicating things today, we have online platforms that allow anyone to publish anything.
So what previously has been black and white with libel and defamation now is a soupy gray, especially when it comes to social media.
Where it’s going still is unfolding in the legal world because of things like “Twibel.”
Indeed, Twitter + libel = Twibel. There are many reasons you should be afraid of it.
“The triggering of a lawsuit begins just by posting it,” says Ken Paulson, president of the First Amendment Center and dean of the College of Media and Entertainment at Middle Tennessee State University. “There is an impression that tweets are not to be taken too seriously. But just because it rotates off your screen doesn’t mean it disappears from the world.”
What’s the Law Say?
Singer Courtney Love, widow of Nirvana front man Kurt Cobain, made history as the first person in the U.S. to go to trial over an alleged defamatory tweet. Love was being sued by her ex-attorney over a tweet that crossed in 2010.
A jury ruled in favor of Love in 2014, saying the plaintiff didn’t prove Love knowingly made a false statement on Twitter.
The First Amendment protects all opinion, so you’re free to share your opinion of anyone as long as you’re not misstating facts, says Paulson, a former USA Today editor. He gives an example: You can say your mayor is the worst your city has ever had, but you can’t say he’s been embezzling from public coffers.
In the case of tweets, most aren’t actionable because they involve opinion, Paulson says.
However, adding to the messy is that most folks forget they’re dealing with the law at different levels. State laws obviously differ from state to state.
“You’ve got to learn what’s going on in the state you end up,” Baker said.
Who’s Protected as a Journalist?
At this point, there’s no easy answer.
There have been cases of bloggers who haven’t met the qualifications in the state law as journalists.
In order to qualify for the Ohio Shield Law, you must be employed with a licensed radio or TV station or be working for a newspaper or magazine.
Baker says that in some cases, judges look at several things: Do you follow the process that a normal journalist follows? Do you talk with multiple sources? Do you work with an editor?
“It’s been a huge issue – who actually qualifies for state protections based under current legislation?” Baker says. “Social media is a very complex area. If it were simple, we wouldn’t need lawyers.”
Let’s also be frank. Logistically, it’s expensive to sue.
“Libel suits are very expensive,” Paulson says. “You’re not going to pursue a libel suit unless you know it’ll pay you more than the cost for a lawyer. A jury is going to look at how damaged you were. If a major news organization libels you, they have a lot more money that you can go after. An errant tweeter may not have deep pockets.”
Check Your Facts
Hajir Ardebili, special counsel with Kelley Drye & Warren LLP, has been practicing law for 14 years. His areas of expertise include internet and media law, copyright matters, and First Amendment work.
Ardebili says folks need to keep in mind that even posting anonymously doesn’t protect you.
“A lot of people think the internet is a consequence-free, wild wild west and that’s simply not true,” Ardebili says. “Journalists and bloggers are more savvy and generally will tweet that way. But with the general person who tweets to their followers and makes Facebook posts, there’s this perception that if it’s on the internet, it’s OK and no one really takes this seriously.”
Ardebili offers some things to remember when publishing:
- Where possible and particularly where you might take a controversial position about another person, it’s better if you can couch your statement as an opinion rather than an absolute statement of fact. To be subject to a defamation lawsuit, the statement of issue must be one of fact, not opinion.
- If you must state something of fact, confirm that your factual statements are true or at least that they can’t be proven false.
- You’re safer if you’re sharing someone else’s statement than if you’re the originator of a statement.
- Public figures are safer subjects than private individuals. If you’re a journalist or blogger and you’re talking about a public figure, you have a little more leeway than if you’re writing about a private person. If you’re going to write about a private individual, take extra care to make sure what you’re writing is true or can’t be proven false.
- If despite taking all this care, you blog or publish something and someone wants to sue you for defamation, you always can offer a retraction or correction. Publish a statement that says certain facts turned out not to be correct, and make a new statement that is correct. This can blunt the negative impact of what originally was published.