Media Law: Ignorance is not a Defense to a Libel Lawsuit & Other Basics

Libel laws could “Trump” First Amendment protections for reporters if he with the eponymous campaign wins the White House.

Earlier this year, Republican presidential candidate Donald Trump made headlines when he said he would weaken libel laws as president to make it easier for him to sue news organizations that have criticized him.

“Feeling maligned by the media,” the Associated Press reported, Trump said he wants to “open up” libel laws so that when journalists “write purposely negative and horrible and false articles, we can sue them and win lots of money.”

“His statement shows why we need libel protections,” Gregg Leslie, the legal defense director for the Washington-based Reporters Committee for Freedom of the Press (RCFP), told reporters. “Trump gets offended, he gets upset and he wants to sue to retaliate. That’s not a good reason to sue someone.”

On that note, ignorance may be bliss, but it’s not a defense that will hold up in court. So, just as reporters master their craft, it’s important for journalists to know the basics of libel law.

Start with a definition. Libel occurs when a false and defamatory statement of fact about a person or entity is written or recorded. Laws vary state to state, but according to the RFCP, courts generally consider a handful of elements in libel cases:

Defamatory Nature

This is communication that exposes a person to “hatred, ridicule, or contempt.” It can be printed, broadcast, or posted online. Although courts generally look at the whole publication for context, even a headline standing alone may be enough to prove libel.

Publication

Whenever a newspaper goes to print, a newscast airs, or an update posts to the web, publication occurs. In some cases, an outlet may find itself in hot water for republishing a libelous statement. For example, letters to the editor containing false information or an advertisement may get a publisher in trouble with the law. News sites typically are not held liable though for reader comments.

Falsity

Information must be substantially true. If a broadcaster reports a bank robber got away with $8,000 (as opposed to $10,000), the figure is not off by so much that it alters the truth.

Identification

In order to meet this element, the false statement must be “of and concerning” whoever is suing. Here, it’s worth noting that a company may sue for libel because its economic livelihood depends on its reputation. Groups also may sue in certain circumstances. For example, imagine a story includes a statement about a local club. If the statement can be interpreted to refer to one member of the group, he or she may sue. For particularly small groups, if the statement refers to a majority of the members, any member of the group may have a claim.

Harm

Depending on the nature of the accusation, most states presume harm and damage to a person’s reputation. Reporters should be cautious when reporting criminal offenses, stories about adultery, and private health matters.

Fault

Different standards exist for libel plaintiffs who wish to demonstrate that a news organization is at fault. High-ranking government, politicians, and other public officials and public figures, such as celebrities, must prove a higher degree of fault — that the news organization acted with “actual malice” when reporting. That means the reporter knew the statements were false or acted with reckless disregard for the truth. A court will examine the journalist’s newsgathering techniques to verify those allegations.

Knowledge is power, but being generally familiar with libel law is only half the battle for reporters who wish to shield themselves from potential libel lawsuits. Attention to detail is arguable a reporter’s best defense.

George Freeman of the Media Law Resource Center said it’s important for journalists to thoroughly vet and check their sources.

Shy away from relying on anonymous sources. Take what they give you and verify it with someone else who is willing to go on the record. “Juries,” Freeman said, “hate ‘protected sources.’ They’ll reward the plaintiff and go after the publication.”

Freeman also advised reporters be particularly careful with wording and the ordering of sentences. Journalists on deadline may write hastily under pressure. Make sure the story conveys accurate information and is not misleading because of a misplaced word or out-or-order sentence.

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Wes Benter is a senior online community services specialist at ProfNet, a service that connects journalists with expert sources. He previously worked as a creative producer for PR Newswire’s MultiVu. Prior to that, Wes worked on-air as a reporter and weather anchor for network affiliates in the Midwest. Learn more by following him on Twitter @WBenter.