By Charles DeLaFuente
Libel can occur in big, black type; in the lead report on the 6 o’clock news — and even in Twitter.
Just ask actress/singer Courtney Love, who was sued by her lawyer, Rhonda Holmes, who had represented Love in an investigation of funds missing from the estate of her late husband, Kurt Cobain. Holmes later dropped Love as a client, to which Love tweeted:
“@noozjunkie I was f***ing devastated when Rhonda J Holmes Esq of san diego was bought off @fairnewsspears perhaps you can get a quote.”
A Los Angeles jury found that Love wasn’t aware the statement was false, even though it was. Under California law, Love thus wasn’t liable.
Granted, trial-court cases do not make new law, but they can act in much the same way as canaries in mines — as sentinels of problems. That’s why every one who writes for a living should know what libel is, and how to avoid it if possible.
A statement that Jones walks to work every day is almost certainly not libelous, even if it’s false. But the statement that Jones, a well-known scientist writing in a peer-reviewed journal, is completely wrong, is libelous — if it’s incorrect. And if it’s right? That brings up the libel lawyers’ favorite saying — that truth is the best defense.
What if the truth costs Jones his reputation, or his job, or both? It doesn’t matter in the eyes of the law: Truth is an absolute defense. It also doesn’t matter in what form the statement appears. A blog is as vulnerable as a major-newspaper’s website, which is as vulnerable as broadcast news. (Congress has given websites protection from comments by third parties, even if they’re false, but not from its own employees.)
There can, of course, be many shades of gray between absolute truth and outright falsity. What if the article says that Jones’s scientific conclusions are all wrong, but the truth is that only a small part of what Jones’s concluded is erroneous? That’s a tougher problem. But it may not have to be thrashed out in court.
If Jones sues the publisher of the statement — typically the writer who reported it and the publication in which it appeared — its defense lawyer will almost certainly invoke New York Times v. Sullivan, the landmark case that says that a plaintiff has to show that an erroneous article was published with knowledge of falsity or reckless disregard of whether it was false or not, and its progeny.
Attribution goes a long way toward negating liability. I recommend imposing something called the “says who?” test on any potentially false statement. Reporting is to some extent like crossing the street, and libel often occurs when the writer fails to ask “who’s saying this?” It’s the equivalent of not looking before you cross.
There’s usually someone other than the reporter making the assertion, though perhaps his or her name is not in the written version. Name him or her, and attribute the statement.
In our hypothetical, is the writer saying that Jones was all wrong, or is he or she saying that X said Jones was all wrong? If it’s the writer saying it, without visible attribution, does he or she mean to? If there’s no attribution in sight, can an expert be found to supply it before publication?
How can an experienced journalist make a “who said” mistake? All too easily:
A statement can seem so safe and incontrovertible, because of where it comes from, that it doesn’t require attribution. Or it can be coupled with an attributed statement that is safe and lends a false air of authenticity. Or it can be buried in an article and pretty tangential to it, so that no one pays sufficient attention to whether it’s true. (Seasoned libel lawyers say they see more claims by peripheral figures than by any other kind of plaintiffs.)
Attribution does not provide an absolute defense, because the re-publication of a falsehood can leave the re-publisher, as well as the original maker, liable. (We’re not going to address the initial maker’s liability.) But attribution probably establishes that the journalist used enough care to invoke the Sullivan doctrine.
Let me offer some assurances about libel and a few caveats.
- Accurate reports of official proceedings and official records — everything from Congressional findings to court proceedings to the police blotter — have blanket protection from claims of libel. A report of what a person says on the witness stand, in court, for example, is protected, whether what the witness says is true or not. Pay attention to the word “official.” Nongovernmental reports and studies are not protected in the same automatic way.
- One cannot libel the dead. Freud’s descendants would have no claim if someone published an unattributed statement that all of Freud’s theories were wrong (though a good journalist would certainly try to get comment from an expert familiar with Freud’s work.)
- There is no such thing as group libel. The statement that all authors are liars is not libelous. But if the group is very small, libel is possible. “All three editors at Magazine X are careless” is libelous if proved false.
- Opinion, such as “the articles in that magazine are atrocious,” is protected. The statement that “the articles in that magazine are all false” is libelous if it isn’t true, because the maker is stating a fact, not an opinion. Placement does not convey safety. A false statement of fact in a column or editorial is still libelous.
Keep in mind that libel suits are few and far between, and successful ones rarer still. They may never be brought, in part because most lawyers will not take a plaintiff’s libel suit on a contingency, for a share of the possible proceeds, so the plaintiff has to pony up a big chunk of money in fees in advance. Even if the plaintiff prevails, the damages may not be that great. But wouldn’t it be nice if all these suits failed, or were never brought, because the defendant was sure of his or her ground?
Charles DeLaFuente is a journalist (15 years at the New York Times copy desk) and a lawyer. He is the author of the e-book Libel-Proof Your Writing: The Importance of Accuracy and Att ribution. _He can be reached at charlesdelafuente@gmail.com.
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