False light claims still plague newspapers

Oct 10, 2013

By Stanley Schwartz

Managing Editor | Publishers’ Auxiliary

PHOENIX, AZ—Defamation is an area of libel law that newspapers could encounter unwittingly, said Jay Ward Brown, an attorney with Levine Sullivan Koch & Schulz LLP in Washington.

It pays to be vigilant by setting up a system of checks before anything goes in the paper or on the company’s website. Brown spoke before a group of publishers and editors during the National Newspaper Association’s 127th Convention and Trade Show.

Brown said he often hears from people that they thought defamation suits were disappearing. Because of interpretations of the First Amendment, he explained, there have been many more wins in defamation suits, but actual the number has been about the same, especially with the increased focus the Internet has brought to newspapers.

Brown explained that defamation is a product of state law and varies from state to state. Libel is the written form of defamation and slander is the verbal form, and it usually consists of a false statement of fact about the plaintiff that injures reputation when published to third parties for which the defendant is at fault. In Times v. Sullivan a new standard for public figures was put into place where the plaintiff has to show actual malice on the part of the defendant and not just negligence.

Even though defamation is about false statement, Brown said, there are instances where states recognize false light invasion of privacy, “which is a claim based on a true statement that casts the plaintiff in a false light.”

Areas from where a lot of claims arise, he said, are from the crime beat, police blotters and covering criminal proceedings in the courts, especially where people believe they have been falsely accused of a crime.

“Common areas where problems arise,” he said, can be minimized in the editing process.

As an example, he showed a wire service story that was based on a DA’s news release about a man arrested for running an illegal chop shop. In some cases, he added, the release may come directly to the newspaper. The reporter who pulled the wire service story decided to do some online background research, and noticed the man arrested had the same last name as the owner of local car dealerships. Unfortunately, the reporter wrote that the man currently being held without bond was the car dealer owner, who is actually a close relative.

“Naturally,” Brown said, “the car dealer sued for defamation of character.”

The defense was able to persuade the judge that a reasonable person would not mistake the car dealer for the actual criminal, given the facts printed in the story about the man arrested. It still cost the newspaper to defend itself even though it ultimately won.

Reports from government officials usually fall under a fair reporting privilege. If a news report is a fair and accurate report of an official proceeding or the record of a proceeding, then the news report is privileged from a defamation claim. Almost every state has a fair reporting law. But in the car dealer’s case, the reporter went beyond what was in the official news release.

There are times, however, when you want your reporters to go beyond the official document, Brown said, but then the report would not be privileged.

Even if there are errors and mistakes in the official document, a newspaper is protected.

Photos and captions

Another problem area is photos and their captions. Brown showed a photo of an employee working at a printing and engraving facility. The caption stated: “Crime” and noted that the Secret Service was looking into missing money from the facility—batches of bills totaling $60,000. It just said the woman was an unidentified printing and engraving employee.

Brown said there was nothing false in the statements made in the caption, but it gave the impression that she might be involved in the crime.

He cautioned that using stock photos or having a photographer obtain a certain subject to illustrate an article, editors should pay careful attention to what’s in the photo and in the photo’s background.

He showed a magazine article about sexually transmitted diseases that also contained a teenager’s photo to illustrate the story. Although the magazine probably licensed the photo, Brown said, it doesn’t necessarily have the right to juxtapose that photo with the text that could cast a negative light on the person shown.

Even a positive story of a consumer reporter who had gone after conmen got one publication in trouble, because the screen shots used to illustrate the piece showed the reporter talking to local businessmen. Those businessmen sued because the photo cast them in a negative light.

Not enough attention was paid to how the two pieces would connect to each other, Brown said.

Letters to the editor

One would think this area would be protected because the letters are the opinions of the writers. But in some instances, Brown said, if you have reason to believe the information in the letter is false, then liability becomes more of a risk.

One letter he showed about Sept. 11, 2001, stated, “every true American should go straight to the nearest mosque and kill at least one of those heathens.”

This was one of several letters about Sept. 11, where writers were expressing their views, though most talked about tolerance.

Even though the letter encourages a criminal activity, Brown said, “In the abstract, there is little to no legal risk to publish it. It doesn’t identify any individuals who are to be targeted. It is a hate-filled letter but not a legally risky letter.”

Still, a class action lawsuit was filed over this letter on behalf of all people of Muslim faith. The case was dismissed because the judge said there was no basis for class action and this was protected speech.

The safety zone of the editorial page protected the newspaper. He suggested having someone on staff be tasked to read letters or institute a review policy.

Website problems

Some publishers believe that reader comments on stories posted to a newspaper’s website could cause problems, Brown said. He showed a comment from one reader who wrote that the local high school coach encouraged his players to use steroids. Legally speaking, Brown explained, the newspaper would not be liable for this statement, because it falls under section 230 of the FCC’s Communications Decency Act.

The protection is provided only if another information content provider posts the content. You are not another content provider if you are responsible in whole or in part to the development or creation of that information. So the letter writer is the only person responsible for the content and is the only one liable for it, Brown said.

Even if a newspaper decides which comments to post or edits them for taste and style it is not responsible for the content unless it changes the meaning or intent of the comments.

“Most lawyers have learned not to sue on this point,” Brown said.

stan@nna.org