Libel, Privacy & Copyright for Copy Editors

Report
Libel Law
for Copy Editors
By Arati Bechtel
About this session
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I asked copy editors about legal issues
they face at work.
I’ll give you the basics of the law most
relevant to your job.
You’ll apply it to some examples.
Please offer your questions and
comments throughout.
What do you remember?
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What kinds of things do you recall
about media law?
Have you had a media law refresher?
Your experiences
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Be thinking about issues, questions or
problems you’ve faced.
Please tell us about them.
Why libel is relevant
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“I was assigned to edit a series about two
gynecologists who had developed a new
technique to treat endometriosis. Among
their fans were movie stars and other
prominent people.
“They had made a fortune using this
technique, which appeared to help but had
some pretty horrifying side effects, like
people’s bowels falling out.”
Why libel is relevant
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“A lot of gynecologists thought they
were quacks. They’d been sued but
never faced sanctions. They were
aggressive with counter-suits.
“So there was a fairly strong
possibility that any news organization
that took them on was going to be
threatened with a suit.”
Why libel is relevant
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“As a copy editor, I had to really
look closely at how we portrayed
them and the criticism and legal
actions against them. I worked with
our lawyer, the reporter and the
editor of the series. We didn’t get
sued, and the series was still pretty
hard-hitting.”
Libel
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Libel law protects reputation as
seen through the eyes of others.
Libel is communication that injures
a person’s reputation.
Libel is communication that
exposes a person to hatred, ridicule
or contempt.
Libel
Six elements of libel (for analysis):
 defamatory content
 identification
 publication
 false statement of fact
 injury
 fault
Defamatory content
Harms reputation or not? Maybe?
 Joe Smith likes sushi.
 Joe Smith visits gay nightclubs.
 Joe Smith defrauded clients.
 Ask: Does headline, source or story
say something that harms reputation?
 Note: Headlines may be libelous on
their own, though courts are more
likely to consider headlines in context.
Defamatory content
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Categories of obviously defamatory
content in North Carolina (similar
elsewhere):
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Person has committed a crime.
Person has an infectious disease.
Person is incompetent or unethical in his or
her trade or profession.
Person is worthy of ridicule or contempt.
Can also libel a product (trade libel).
Defamatory content
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Alleged rapist; reportedly embezzled;
reputed drug dealer
Do these qualifying words protect
newspapers?
Why?
Defamatory content
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Boston magazine’s story: "Fast Times at Silver Lake
High: Teen Sex in the Suburbs.”
Photo of five teenagers illustrates story.
After crediting the photographer, the mag ran a
disclaimer: "The individuals pictured are unrelated to
the people or events described in this story.”
One teenager sued.
U.S. Court of Appeals said that if a reasonable reader
did not read the disclaimer, the reader could have the
impression -- incorrect, but not unreasonable -- that
the teenager is the subject of the unflattering text in
the story.
Stanton v. Metro Corp. (March 2006)
Exercise
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MISSING BRIDE
SAFE, NOT SOUND: A
woman whose
disappearance
prompted a
widespread search
tells police she got cold
feet. NATION, PAGE
3A.
Is this (real) 1A promo
defamatory?
Identification
True or false?
 A person can be identified simply by a
nickname or description, i.e., without full
name.
 The statement has to be “of and
concerning” the plaintiff. So, identification
may be by initials, description, caricature,
photo, etc.
 Key question: Do other people recognize
the plaintiff?
Identification
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Using as much information as
possible to identify a person is a good
idea, especially with obviously
defamatory stories, such as?
Ask yourself: Did the story ID this
person/co./org. as fully and clearly as
possible?
Using middle initials
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From an internal memo by a top
newspaper editor: “We talk a lot
about the importance of using middle
initials. Today we are glad we used
them in the metro briefs. A former
cop, Will W. Oates III, was charged
with obtaining property by false
pretenses.”
Middle initials memo (cont’d)
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“Today we received a call from a
former sheriff’s deputy named
William E. Oates, who was getting
calls from friends because his name
was in the paper. But we used the
middle initial, and we were able to
inform Mr. Oates, which calmed him
somewhat.”
Middle initials memo (cont’d)
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“It is on the police and court beats
where this most often becomes an
issue, but it can come up when we
quote people at public meetings or as
bystanders at an accident.”
Middle initials memo (cont’d)
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“If you want more convincing, open
the local phone book and turn to
Miller. There are five Garys, a dozen
Williams, 11 Pauls. At any particular
time, one of these Garys, Williams or
Pauls may pop up in our paper, and
we need to think of the rest of them
and their friends.”
Publication
True or false?
 To win a libel case, there has to be
widespread publication of a story.
 Requires communication to one person
other than writer and defamed person.
 Circulating a story in a newsroom can be
publication. (But limited communication
may mean limited harm.)
Republication Rule
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“The bearer of tales is as guilty as
the teller of tales.”
Each person who participates in the
repetition or republication of a
libelous statement can be held legally
liable.
This is why newspapers can be held
liable for defamatory letters to the
editor, ads, statements by sources.
Injury
True or false?
 Some plaintiffs can’t be harmed by a libelous
statement.
 A few people have truly horrible reputations
not capable of further injury.
 Examples?
Injury
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Usually, injury is intangible: loss of
reputation, standing in community,
mental harm, emotional distress, etc.
Sometimes, injury is actual monetary
loss.
Falsity
True or false?
 Newspapers have the burden to
prove in court that the story is true.
 Plaintiffs have to prove the story is
false if the story involves a matter of
public concern.
 Most everything in a newspaper is a
matter of public concern. Why else
would the paper run it?
Fault
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Plaintiff must show seriously
unprofessional conduct, not just honest
mistakes.
Fault level depends on who the plaintiff is.
Public figures and public officials face a
higher hurdle because they put
themselves in public positions, invite
attention and have access to media.
Private figures have an easier time here
because they don’t choose the spotlight.
Fault
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Two kinds of public figures:
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All-purpose: have persuasive power
and influence, a “household name,”
celebrity, widespread fame or notoriety,
or continuing news value. Examples?
Limited-purpose: voluntarily involve
themselves in public controversy to
influence the outcome. Examples?
Richard Jewell
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Ruled to be a limited-purpose public
figure.
Why not just a private figure?
Jewell voluntarily entered a public
controversy by speaking out about the
bombing and his role in clearing the park.
He “spoke repeatedly of the training which
he and the others had received,
commented on park safety, and
encouraged the general public to return to
the park,” a court ruled.
Fault
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Public official has or appears to the
public to have substantial
responsibility for or control over the
conduct of government.
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Controlling finances, directing policy,
making law, enforcing law, etc.
Private figure is a person who
doesn’t fit the other plaintiff
categories.
Fault
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Public figures/public officials must prove
actual malice:
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Knowledge of falsity or reckless disregard for
the truth
Knowledge of falsity: e.g., fabrication
(think Stephen Glass and Jayson Blair);
examine state of mind.
Reckless disregard: use of poor sources,
inadequate investigation by deadline,
avoiding truth, inherent unbelievability of
allegation, serious doubts about the story;
examine conduct.
Judge Murphy v. Boston Herald (2005)
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A front-page story said Judge Murphy
was a "wrist-slapping" judge who had
"heartlessly demeaned victims" and had
said of one young rape victim: "She's 14.
She got raped. Tell her to get over it."
Judge denied making these statements.
Judge Murphy v. Boston Herald (2005)
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The jury considered 61 statements; most
appeared in The Herald, and the reporter
made five on "The O'Reilly Factor."
After deliberating for 20 hours, the jury
concluded that The Herald and its reporter
libeled Judge Murphy in 22 statements.
Jury awarded $2.09 million to the judge.
Reckless Disregard
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One prosecutor said the reporter got the
gist of what the judge said. Others testified
they remembered no such remark.
Reporter never spoke to the judge before
the first article was published.
The Herald's reporting was based on local
prosecutors with a "vendetta" against the
judge (i.e., poor sources, inadequate
investigation, perhaps avoidance of truth).
Fault
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Private figures usually must prove
negligence:
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Failure to exercise ordinary care, to act as a
reasonably prudent person would under similar
circumstances, to follow accepted professional
standards and practices
Evidence: failure to contact the person
defamed, failure to verify information
through the best sources available and a
discrepancy between what the reporter
reported and what a source said.
The Wires
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Ordinarily, courts rule that it is not
negligent to publish a wire service
story without checking the facts in the
story.
In other words, courts recognize that
relying on the wires is an accepted
professional practice.
Libel Defenses
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Truth
Opinion
Fair report privilege
Truth
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All elements of story (headline, cutline, text,
etc.) have to be substantially true.
Most of the information and all of the
important details must be true.
Some minor falsity or errors will not
necessarily destroy the truth defense.
Libel Exercise
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Headline from New York Post (July 9):
Vatican sacks six pervy N.Y. priests
Story names all six and says they “were
defrocked… following allegations of sexual
abuse.”
Two men were convicted of sex crimes. All
were punished under the Charter for the
Protection of Children and Young People.
Is this headline safe?
Opinion Defense
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This defense protects if the defamatory
statement:
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Is hyperbole.
Is incapable of being proven true or false. OR
Is based on accurate information.
Not Protected Opinion
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A columnist wrote about a university
basketball star who was arrested one
weekend for assaulting his exgirlfriend.
The athlete wasn’t held in jail over
the weekend, as is required in
domestic violence cases.
The columnist condemned his
special treatment as an athlete.
Not Protected Opinion
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But the player and ex-girlfriend didn’t
live together; so, the assault wasn’t
considered domestic violence.
The athlete would not have been
required to remain in jail.
Columnist’s opinion was based on
inaccurate information.
Protected Opinion
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A Louisiana newspaper food critic
wrote that food from a restaurant was
covered with “hideous sauces” and
that he was served “trout a la green
plague.”
Opinion was based on critic’s actual
experience. Plus, how food tastes or
looks is a subjective matter that can’t
be proven true or false. “Green
plague” is hyperbole.
A Libel Exercise
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A (real) letter to the editor, criticizing a portly
sheriff’s use of Taser stun guns, reads:
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“There was something else [the sheriff]
established during his press conference: that he
would be too overweight and out of shape ever to
apprehend a suspect without the assistance of a
Taser. I doubt that [he] could even subdue a
suspect already in handcuffs.”
Opinion defense applies? Is it hyperbole,
incapable of being proven true/false, based
on solid facts?
Fair report privilege
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Applies to stories based on official gov’t
meetings and documents.
Protects if story is accurate, fair, substantially
complete and not motivated by ill will.
Protects many stories about crime, legal
battles and government.
Case: Fair Report Privilege
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N.C. newspaper reported in its “police
blotter” section that Daniel and Gail
LaComb were arrested and charged
with contributing to the delinquency of
a minor.
Case: Fair Report Privilege
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Arrest warrants: the LaCombs “unlawfully,
willfully did knowingly . . . cause, encourage
and aid [the juveniles] to commit an act,
drinking beer and smoking cigarettes, and
engage in a sex act.”
Newspaper: “The two were both accused of
encouraging cigarette smoking; beer
drinking and engaging in sex acts involving
a 15-year-old boy and 16-year-old girl.”
Note red semicolon above.
Case: Fair Report Privilege
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The LaCombs claimed the incorrect
semicolon in the news report falsely
implied that they themselves were
accused of engaging in sex acts with
the juveniles – rather than just
encouraging this behavior.
Case: Fair Report Privilege
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The N.C. Court of Appeals ruled
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The fair report privilege covers arrest reports.
It applies if the report makes a substantially
accurate statement of the facts and if it does
not comment on or suggest guilt of the person
accused.
The court concluded:
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The semicolon is misused.
But the article is still substantially accurate
when compared to the warrant.
Blogging
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Section 230 of Title 47 of USC: “No provider
or user of an interactive computer service
shall be treated as the publisher or speaker
of any information provided by another
information content provider.”
Relates to liability.
Bloggers can be both a provider (e.g., let
users comment on your blog) and a user
(e.g., create/edit blog on Blogger) of
interactive computer services.
Blogging
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Experts believe that Section 230 protects
bloggers from liability for information they
have selected and linked to in other blogs or
elsewhere on the Internet because the
bloggers did not originate the content.
Readers' comments and information in an
RSS feed would likely be considered
information from another content provider.
If you link to an article but add a defamatory
remark to the link, you may not be protected.
Blog example
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Cutline: Doesn’t this woman look like she’s gonna pee her pants,
she’s so excited?
Blog example
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Drudge Report (June 19):
It’s not accurate.
Box office was down, but also for other
movies that weekend.
Per screen average beat many other movies.
False?
Libelous?
“Liar”
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Is calling someone a liar a statement of truth
or opinion?
“The coach lied about his role in the brawl.”

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