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Part III. Defamation and Privacy
II. Invasion of Privacy
Defamation is the general term for statements that tend to injure a subject's personal or business reputation. Libel is defamation that occurs in written form; slander is oral defamation. A newspaper's re-publication of a slanderous statement would be termed libel.
The price of "winning" a libel suit can be very high. But the cost involves much more than lawyers' fees. The mere process of defending a libel suit, no matter how groundless the claim, diverts time and effort from the normal business of reporting the news; it interferes with the editorial process in publishing related stories; it calls into question the credibility of the entire news staff; and it exacts on the individual reporter an emotional toll that may affect work even after the suit is resolved.
It is also an unfortunate fact that newspapers can lose libel suits for reasons that have nothing to do with the truth or accuracy of the challenged story.
For these reasons, the first goal of the newsroom should be to avoid libel suits wherever possible, without compromising the integrity of the story. The second goal, where damage to reputation is unavoidable from the facts of the story, should be to reduce the newspaper's risk of liability and strengthen its ability to dispose of the suit quickly.
The guidelines in this section are arranged with these goals in mind. Suggestions are offered for dealing with libel concerns at each stage of the editorial process, from investigation through writing, editing, legal review when necessary, and after publication. Traditional listings of libel "defenses" and definitions are generally avoided, on the theory that these are technical rules developed by lawyers for use in lawsuits. When considered outside the practical context of the news-gathering process, they are confusing at best and dangerously misleading at worst.
Still, in a libel suit, the editorial process must be translated into and reconciled with those legal principles. Therefore, an attempt has been made to incorporate the technical rules into guidelines and, in some cases, to include mention of important court cases, as a useful "shorthand" for discussion purposes.
In using these guidelines, it is critical to recognize that they do not try to address matters of journalistic practice and ethics. Answers to questions about the adequacy of an investigation, the reliability of a source, and verification of facts in general will not be found in the guidelines. These are matters of professional training and editorial judgment that will vary with the circumstances of each story and should be left to the sound editorial policies of the newspaper.
Where the guidelines suggest additional investigation or caution in reporting certain matters, these suggestions are intended to strengthen the newspaper's defenses against a libel suit. They are not intended as rules to be followed mechanically in all cases, and should not be interpreted as either a summary of, or a substitute for, sound journalistic practices.
In applying these guidelines, it is helpful to focus on certain practical "truths" that are probably self-evident to any news organization that has had to defend even informal claims of libel:
1. Any statement or inference (whether intended or not) that can be read as damaging to the personal or business reputation of its subject may be libelous. In practical application, no more technical definition of libel is needed.
2. Although in theory a plaintiff must prove falsity to establish a claim for libel, the truth of a story is not a guarantee against being sued. The causes of libel suits have as much to do with the subject's interpretation of the story as they do with the technical truth or falsity of the statements published. Although some courts have held that defamatory meaning may not be imputed to true statements libel suits are frequently brought on the basis of completely true statements.
3. Knowing the truth and proving the truth are two different things. The first may be based on reliable sources, second-hand information, and the training and experience of the reporter; the second requires credible and willing witnesses, direct evidence and provable facts. Proving the truth in a lawsuit can be expensive, and in some situations may be impossible.
Finally, in legal review of a story, it is important to keep a clear distinction between the lawyer's and the editor's roles. The function of a newspaper's lawyer should be to identify all risks, suggest ways to minimize those risks, and assess the evidence available to defend the newspaper, if necessary. The decision of whether and what to publish should be made by the editor, who is in a position to weigh the identified risks against the importance of particular facts and the news value of the story.
1. What Is the Subject of the Story?
(a) Official Proceedings: Re-publication of defamatory statements made in the course of judicial, legislative or other public and official proceedings may be protected if the report is "fair" and "accurate."
(i) Is it fair? Is the full context given? Was another side presented?
(b) Court Pleadings: Re-publication of defamatory statements contained in pleadings filed in court may be protected if the report is fair and accurate. Note: In some states there may be an additional requirement that the pleadings be acted upon by the court before the privilege attaches. Although Washington cases have not imposed this restriction, stories originating in other states may require special attention.
(i) Have the pleadings actually been filed, or merely served on potential parties?
(c) Official Conduct of a Public Official: Libelous statements about this subject may be protected if they are published without knowledge or reckless disregard of their falsity. Note: This is commonly referred to as "the New York Times rule" or sometimes the "actual malice" rule, although it has very little to do with "malice" in the common sense of the word.
2. What and Who Are the Sources of Information?
(a) Public Records: Re-publication of libel from some public records may fall within the "official proceedings" privilege described in 1(a) above, but not all documents found in a public file or accessible under public records disclosure laws will fall in this category. Internal memos, background papers and other documents that are not truly records of official action or proceedings are questionable in this regard.
(i) What are the source's motives? Knowing that a source is hostile toward the subject does not establish reckless disregard of the truth if the charges themselves are credible, but information from such sources should be viewed with caution.
(e) Confidential Sources: A source who refuses to be publicly identified poses a special problem in the area of libel. Courts have held, in extreme cases, that refusal to disclose the identity of a news source in the course of a libel case may entitle the jury to presume that the source did not exist - that is, that the reporter fabricated the statement or facts in question. Although there are legal arguments against the constitutionality of such a presumption, the inability to identify a news source may seriously weaken the ability to defend against a libel claim. Also remember that reporters have been jailed for contempt of court because of their failure to disclose the identity of a source. If use of confidential sources is unavoidable, at least discuss the possibility of being released from the pledge of confidentiality. Also recognize that plaintiffs in libel cases may use the confidential source issue as a "red herring" to drive up the expense and burden of the newspaper's defense. If the source of published information is confidential, don't broadcast that fact in the story itself. An additional problem with confidential sources is the possibility of a suit by the source if for any reason confidentiality is breached. The Supreme Court has held that a betrayed source may collect damages under some circumstances.
3. Who Is the Subject of the Story?
(a) Public Officials: Under New York Times Co. v. Sullivan, libelous statements relating to the official conduct or fitness for office of a public official are protected if published without knowledge or reckless disregard of their falsity. (The New York Times rule.) The Supreme Court has defined public officials to include:
(i) Although police officers are generally considered to be public officials, a police officer described in a radio broadcast as having been observed "in a somewhat compromising position" with another person's wife was found not to be public official for purposes of his libel suit against the broadcaster when there was only a weak link between the defamatory allegations and the patrolman's official duties.
(b) Public Figures: Very few people have achieved such pervasive fame that they are considered public figures for all purposes relating to their public lives. Other people who have voluntarily thrust themselves into a public controversy, seeking to influence its outcome, may be considered public figures for purposes of reports of their involvement in the controversy. Libelous statements relating to public figures in this context are subject to the protection of the New York Times rule. In cases of doubt, consider:
(i) Was involvement in the public controversy truly voluntary? Filing a lawsuit which becomes the center of a public controversy may not be a voluntary act if court action is necessary to accomplish a particular end, as in the case of divorce or probate of a will. For example, a prominent business owner who was accused of a crime was found by the Washington Supreme Court not to have voluntarily sought to influence the resolution of a public issue, and therefore was not a "public figure."
(c) Private Individuals: Libelous statements about private individuals are generally not subject to the protection of the New York Times rule. The private individual can usually recover for libel if he or she can prove that the newspaper reporter or editor either knew the statement was false or, in the exercise of reasonable care, should have known of the falsity. Under this standard, juries will focus on whether the reporter took reasonable steps to verify the facts but they may also focus on whether the newspaper exercised "reasonable care" in how it described those facts.
(i) Was the subject of the statement contacted for a response? Are both sides fairly stated?
(d) Corporations: Corporations may be either "public" or "private" figures, depending on the same criteria used to determine whether an individual is a public figure. The fact that a corporation is large, that its stock is publicly traded, or that it advertises its products or services does not automatically make it a public figure. (e) Practical Comparison of the New York Times Rule and the Reasonable Care Rule: The New York Times rule essentially asks whether the newspaper had any reason to seriously doubt the truth of the statements published. In the absence of such doubts, failure to investigate further would not, by itself, constitute reckless disregard of the truth. The reasonable care standard, on the other hand, imposes an affirmative duty to take reasonable steps to confirm the truth before publishing.
1. Who Is Likely to Sue? At this stage in the process, all the considerations discussed above should continue to be borne in mind. However, there are other points that can be considered only as the story begins to take shape, such as:
1. Who Is Likely to Sue? In addition to the principal subject(s) of the story, there may be others, both named and unnamed, who may object to the description of their involvement in the matter.
(a) Named Subjects: Are people other than the principal subject "tarred with the same brush"? Can they claim damage to their business, even if they are not personally criticized? Is a supervisor implicated in a story about charges against his or her subordinates?
2. What Is the Nature of the Potential Libel?
(a) Insults or Name-Calling: Such words are generally not considered defamatory. However, there is a long history of cases that have construed common insults as statements of fact, and the conclusion may well turn on the context of the story.
(i) Overall Context: A number of the "privileges" or protection available for various types of stories, discussed above, depend on the fairness and accuracy of the report. Likewise, it has been held that reckless disregard of the truth under the New York Times rule may be shown by evidence of circumstances demonstrating that the newspaper was predisposed to ignore doubts concerning the truth or falsity of statements about the plaintiff.
The goal of pre-publication legal review is to identify and evaluate the legal risks involved in a proposed story and to suggest ways to reduce those risks without compromising the integrity of the story. The process should be a team effort with the editor, reporter and lawyer all working to produce an accurate, uncompromised story and to eliminate unnecessary risks, but it is the editor, not the lawyer, who ultimately decides what should be included or omitted from the story.
The scope of legal review will depend on the nature of the story. In some cases, a quick answer to a specific question may be enough to resolve the editor's concerns. In most cases, however, the lawyer should be given a complete copy of the story with proposed headlines, cutlines and illustrations, if available. The review itself will generally focus on the following questions:
1. Who is named or identifiable in the story? This initial step should identify everyone, named or unnamed, identified in the story, whether comments about them are favorable, neutral or derogatory.
2. Is anything defamatory said or implied about any of these people? At this point, truth or falsity is not at issue; the goal is to identify anything that is potentially damaging.
3. Is the damaging material a statement of fact or opinion? This analysis weeds out non-actionable statements of pure opinion, and focuses on the factual statements or implications that may have to be defended.
4. Are defamatory statements or implications intended? If so, are they necessary to the story? This step further reduces the analysis to only those damaging statements that are actually necessary to the story.
5. What is the source of the damaging information? The purpose of this step is to identify any privilege defenses that may apply - for example, privilege to report court pleadings, official proceedings, etc. - and also to evaluate the reliability of the information.
6. What evidence or witnesses will be available to support the truth of the damaging information? This step begins to evaluate the ability of the newspaper to defend, if sued.
7. Is there evidence that contradicts the damaging statements or implications? This analysis should look first at the story itself. If a statement or implication is contradicted in the body of the story, the plaintiff may argue that the reporter knew the damaging statement was false.
8. Are all sides of the story covered fairly? Has the subject been given a fair chance to respond? The purpose of this analysis is to assess the possibility of a neutral reportage defense, and to eliminate implications that are not necessary to, and supported by, the rest of the story.
9. Are there any leads that were not explored? Recent case law suggests that a reporter's failure to follow up on information constitutes proof of New York Times malice. Thus, a public figure libel plaintiff may survive summary judgment with assertions that editors didn't adequately "grill" a reporter on sources for the story, didn't "spot check" the reporter's tapes, or otherwise didn't conduct a "reasonable investigation" into claims by the subject of an upcoming story that the story contained various inaccuracies or misquotations.
10. What more can be done to reduce the risk of a lawsuit? Would fictitious identities be possible and appropriate? Can tangential issues or subjects be dropped without damaging the story?
11. What can be done to enhance the ability to defend a lawsuit? Questions 9 and 10 often overlap in the analysis, but they are two distinct inquiries. In some cases, the editor's decision may be to drop a subject that is not essential to the story; in other cases, there may be further investigation that will resolve a question or provide additional sources to support the truth of the story.
12. Are headlines, cutlines and photographs consistent with the final version of the story? This final step looks at whether the overall context of the story is consistent with the intent of the story and the strategy for its defense. For example, a story that relies upon the privilege for fair and accurate reporting of court pleadings may be undercut by a one-sided or accusatory headline.
Although these questions anticipate legal review, many can be answered in the editorial process before the lawyers are called in. This in turn will help to sharpen the focus of the remaining legal questions.
The expense of a libel suit may be avoided with proper handling of any complaints about the published story. As a rule of thumb, treat every complaint as a preliminary step to the filing of a libel suit and every response to the complainant as possible evidence to be used against the newspaper.
1. Oral Complaints: An angry phone call or hallway confrontation may be nothing more than the complainant "venting his spleen." Don't take the complaint as personal criticism, and do not aggravate the situation by arguing. If you wrote or edited the story, it may be preferable to route the call to a senior editor specifically charged with promptly responding to complaints. In any case,
(a) Listen carefully and take notes. The complainant's statements may also be used as evidence against him or her if a suit is filed.
2. Written Complaints: These should be routed to the editor and the lawyer immediately. Even if an error is apparent, the treatment of the error may be important in avoiding a lawsuit and should be decided upon with legal counsel.
3. Retractions or Corrections: Where a correction seems warranted by the complaint, care should be taken not to aggravate the situation by creating a false impression from the correction itself. Consider whether a correction should be run without the consent of the subject. This does not mean the complainant should dictate the language, but you should at least consider whether he or she will object to having the subject raised again in the form of a correction.
Recognize that, in some cases, retractions or corrections can be a valuable negotiating tool in securing a binding release or agreement not to sue from the complainant. If a lawsuit is threatened or seems likely, the newspaper's lawyer should therefore be consulted even where the correction seems fully justified.
4. Reporters' Notes: If a complaint is received, reporters' notes relating to the story in question should be compiled and safeguarded. If a lawsuit seems imminent, the editor might forward them to the newspaper's lawyers. Destruction of notes may do more harm than good and might, under some circumstances, even constitute contempt of court. In many cases, the notes may provide the best evidence of "reasonable care' in preparation of the story.
Libel is a complex and constantly changing area of the law, with most of its technical rules geared to the litigation, not to the editorial, process. At the same time, the question of whether a publication is libelous is determined, as a matter of law, by what the ordinary reader would understand from the context of the story as a whole. Reliance on technicalities to avoid libel is therefore almost always unsuccessful.
In the long run, basic journalistic principles of truth, accuracy and fairness, both in the reporting process and in responding to complaints, are still the best protection against being sued for libel.
II. Invasion of Privacy
Invasion of privacy is one of the most subjective and nebulous areas of the law affecting newspapers. It covers conduct at both the news-gathering and editorial stages of publication and may also affect use of photographs and illustrations. In broadest terms, the right of privacy includes the "right to be left alone," the right to be portrayed to the public in an accurate light, and the right to control the use of one's name and likeness by others.
Under traditional analysis, there are four recognized categories under the general heading "Invasion of Privacy." Although the courts of a given state may not have addressed all categories, certain basic principles are generally recognized in each category and can be presumed to apply.
1. Intrusion: Conduct that intrudes on another's reasonably expected sphere of privacy may give rise to an action for damages for embarrassment, mental suffering and trespass. In the news-gathering process, such charges can arise from actual trespass on another's property, unreasonable photography (for example, intrusive use of telephoto lenses or harassing tactics), unauthorized recording of private conversations and, in some circumstances, gaining admittance to private places under false pretenses.
(a) "Wiretap" Statutes: Washington law prohibits the interception or recording of a private conversation without first obtaining the consent of all parties to the conversation. Although a special exception is included for members of the press, it provides that consent may be presumed only if the recording device is "readily apparent or obvious" to the speakers. It does not authorize recording of telephone conversations without actual prior consent, but it does permit divulging the recorded conversations even if consent is later withdrawn. Federal statutes prohibit similar activities, but generally less stringently, so the Washington statute should be considered as the proper guideline for practical purposes.
2. Publication of Private Facts: "Invasion of privacy" in this context has been defined as publication of "matter concerning the private life of another ... that (a) would be highly offensive to a reasonable person, and (b) that is not of legitimate concern to the public." In practice, some courts have tended to weigh the first element - "offensiveness" - against the second - "newsworthiness." Thus, the more offensive the invasion of privacy, the more important its value as news must be to avoid liability.
(a) What Details Are Newsworthy? In addition to facts about the subject's life, the newsworthiness defense may also provide protection for peripheral details tending to explain the subject's conduct and motivation. Thus, details about a news subject's spouse were held protected where they were directly related to the newsworthy subject of the article. Note: This should not be interpreted as a blanket protection for all details of a private family life, but only those relating to the principal subject matter.
3. False-Light Publicity: In some ways, this concept is an extension of the law of libel to impose liability on false statements of fact that do not damage reputation, but do tend to portray the subject in a "false light." The Supreme Court has held that the question of falsity must be analyzed under the same standards as the New York Times rule - that is, whether the newspaper had knowledge of the falsity or acted in reckless disregard of truth or falsity - where matters of public concern are involved.
4. Appropriation of Name or Likeness: This category of privacy almost always arises in the context of a commercial use of a person's name or photograph and is generally not involved in news reporting.
An early Washington case recognized the principle of name appropriation in the context of unauthorized use of a person's name to endorse a political candidate or cause, which raises the possibility that the principle may be applied where names are used in certain types of feature material in a way that might imply such an endorsement. It has also been argued that a photograph used for non-news purposes, merely as illustration, should fall within the category of a commercial use, but this argument is usually rejected.
In the newsroom context, the principal defense to invasion of privacy will usually be "newsworthiness." However, it should be recognized that this will not be a defense to either intrusion or the falsity issue in false-light publicity cases. The best defense in all categories of privacy, when it is available, is consent.
1. What Is the Scope of Consent Given? Consent may be either express or implied from the circumstances. For consent to be effective as a defense, however, the manner of publication must not exceed the scope of consent given. Thus, consent of a news subject to a discussion of his or her private life will not be effective as a defense to allegations that the facts were presented in a false light. (Compare this to the rule in libel law; see SECTION B: NEWSGATHERING - (F) A NOTE ON CONSENT)
Likewise, consent to talk to a reporter about private matters may not be effective as consent to publication if the subject is not aware of the reporter's identity. A harder question, still undecided, is whether consent to talk to a reporter may be construed as implied consent to publication in all cases. Proceeding without that clear understanding may carry some risk.
2. May Consent Be Withdrawn? A news subject who agrees to talk to a reporter about private matters and then changes his or her mind before publication may effectively withdraw consent by that decision. While this does not automatically bar publication of private matters (where, for example, they are clearly within the defense of "newsworthiness"), it does negate the initial defense of consent.
3. Consent for Photographs: Common practice is to obtain written consent for subjects of photographs, although this practice is seldom followed for subjects of interviews. The difference stems from the fact that the interviewed subject's own disclosure of private facts to the reporter reinforces evidence of the subject's consent.
A photographic subject, on the other hand, may argue that he or she was not even aware the photograph was being taken and therefore did not consent, either expressly or implicitly. Written consent for photographs is therefore sound practice, although it, too, may be withdrawn before publication unless a binding contract has been formed.
A very simple non-contractual consent form is included as Appendix VII. It is intended to cover only routine news photographs and may not be adequate for major photo stories or particularly sensitive subjects. When photo projects are planned and time allows, it is always good practice to discuss the circumstances with the attorney and tailor consent forms to the situation.
4. Implied Consent In Public Places: The general rule is that there is implied consent to publicity concerning matters which a person voluntarily discloses in a public place. The Washington court has interpreted this to include television photography through a store window. Again, however, such implied consent does not extend to presentation of those matters in a false light.
There may also be a question as to whether the disclosure was truly "public" and "voluntary." The more potentially embarrassing the facts, the less reliance should be placed on this theory of implied consent.
Invasion of privacy, although difficult to define as a matter of law, is easier than defamation to analyze at the newsroom level. Ultimately, it comes down to subjective judgments about what is "highly offensive" and what is "newsworthy" in the mind of a reasonable person. Legal counsel may be helpful in the analysis by drawing on examples from the considerable number of court decisions in the area.
However, the initial recognition of an invasion of privacy issue in any given story is usually within the expertise of a trained reporter or editor.
Copyright © 2007 The Seattle Times Company