August 8, 2009

How to prevent against online libel and defamation

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The Bill of Rights

A brief guide for citizen journalists and bloggers

Target audience: Journalists, bloggers, nonprofits, cause organizations, NGOs, general public.

Guest post by Mitch Ratcliffe
RatcliffeBlog

There is much that bloggers can learn from journalists, who have learned how to cause the most trouble possible without landing in jail over the course of centuries. I highly recommend you pick up a copy of The Associated Press Stylebook and Briefing on Media Law ($13 at Amazon.com, which is the essential text for many journalists.

In addition, here’s a good source for students and other beginners.

If you want to go deep and learn a lot, read this piece from the Massachusetts Bar Association’s Journalists’ Handbook.

It’s worth understanding this stuff even if you don’t want to be a journalist, because anyone can be sued for libel, slander or defamation.

The first thing to understand about all subjects relating to journalists’ privileges is that they are different everywhere. There is no international standard set of laws, though journalistic professional societies have pressed for these kinds of uniform expectations. Most of what I’ll lay out here relates to the United States, where the press enjoy the most liberal protections available. In Canada, for example, there is no presumption that a journalist can protect their source. In much of Europe, the subjects of photographs retain far greater control of pictures through their moral rights (PDF), or “droit moral,” which provides both the photographer and the subject protection from the unauthorized reuse of the image in whole or in part — juxtaposing the image of a person into an advertisement, for instance, which is common in digital media is prohibited without their permission.

Elements of defamation

Defamation, slander and libel are the same thing, essentially, but each is defined based on the way a false statement about a person is conveyed. According to ExpertLaw.com’s entry on Defamation, Libel and Slander Law, the general principle behind all three must include the following elements:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is “published” when it is made to the third party. That term does not mean that the statement has to be in print.

Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.

Most jurisdictions also recognize “per se” defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:

• Attacks on a person’s professional character or standing;

• Allegations that an unmarried person is unchaste;

• Allegations that a person is infected with a sexually transmitted disease;

• Allegations that the person has committed a crime of moral turpitude.

Libel is committed when a statement that meets the standard above is published in a document, whether a newspaper, magazine, book or Web site. Bloggers need to keep this firmly in mind when writing about someone, especially someone who is not a public figure (we’ll get to that in a moment).

A slander is a spoken defamation, whether that act of speech is public and one-time or recorded and redistributed. Slander also includes defamation by gesture, which could include making a gesture that suggests professional incompetence or mental illness. Slander carries the additional burden for a plaintiff of having to prove that they suffered actual loss due to the false statement.

If you are webcasting, podcasting, producing digital video or otherwise using the Internet to convey information that may be construed to be slanderous, this is the branch of defamation law about which you need to be aware. RTNDA, the Association of Electronic Journalists, offers a deep resource on the use of many different kinds of information in a broadcast that deals with a variety of liabilities and ethical questions radio and television journalists face.

In all cases, the truth is an absolute defense against charges of libel, slander or defamation (except in totalitarian countries or those not under the rule of law, where a judge can rule arbitrarily in favor of a powerful person). If you are going to call someone “a crook” or “a philanderer,” for example, be sure that you can prove they are a criminal or that they are stepping out on their spouse or carrying on multiple affairs simultaneously. Be ready for challenges to your proof, so don’t take for granted that one item of proof is sufficient.

But the truth is a relative thing, because public figures are the subject of varied opinions which the writer or producer is largely convinced. Public figures have to prove that the writer or speaker willfully ignored the truth or acted with flagrant disregard to the truth. And that is hard to prove. In the case of Dan Rather’s broadcast accusing President Bush of having avoided his National Guard service based on documents it failed to vet completely, the fact that it involved a source’s documents insulated CBS from charges of slander and libel (since they both broadcast and published articles on the cbs.com Web site).

Fox News has mastered the practice of deflecting an accusation by attribution, as in the phrase “people say…” or “according to sources” before leveling an untrue or highly opinionated statement. This is not a defense against libel or slander if the criteria described above are met. The burden for a journalist would then fall to the question of whether a source really made the accusation. And this is where the issue of confidentiality comes in.

Confidentiality

The confidentiality of sources involves protections that are somewhat mythical. In many jurisdictions, including the United States, there is no guarantee that a journalist can protect her sources. It’s not in the U.S. Constitution, but has been interpreted to be a journalist’s privilege in a number of state and federal cases. Shield laws have been passed in many cities and states, but these do not protect someone publishing on the Web, who may be indicted in another jurisdiction that has no such laws.

Confidentiality is grossly abused these days, in my humble opinion. It is used by government and corporate officials who should be on the record when they launch test balloons, make attacks on opponents and much else. It is also just plain lazy on many journalists’ part, because they should use a background statement to delve into the truth in order to get the facts on the record. But in the race to make a scoop — and, unfortunately, many journalists just think being first, rather than being complete and accurate, is paramount — solid sourcing often goes out the window.

Sources can sue you for libel or slander, as well, if they dispute what words you put in their mouths. This is why a journalist’s notes are so terribly important. In one case, a journalist whose source disputed a phrase lost the case because the words were in his notebook but not in quotes. A journalist learns to annotate carefully because of these kinds of realities.

Mark Felt, revealed as Deep Throat

Mark Felt, revealed as Deep Throat

A confidential source, who has extracted a promise of anonymity, is in a position to say almost anything and in the course of reporting you may find that some of the things said get you in more trouble than is necessary. This is not to say you shouldn’t source an accusation, but that the accusation’s falseness raises many more barriers to finding the truth than the confidential source claims they eliminate with their information, so judge carefully whether you are really advancing a story by offering confidentiality to a source.

Woodward and Bernstein of the Washington Post made a historically important and correct decision to protect the identity of a senior Nixon Administration official who guided them in their reporting of Watergate: Deep Throat. In May 2005, a former top FBI official named Mark Felt went public in Vanity Fair and acknowledged he was Deep Throat, but Woodward and Bernstein and their editors never revealed their source.

If the source has something to lose and can demonstrate it is materially important to them, then confidentiality may be necessary. If confidentiality is a convenience for the source, you’re better off doing more footwork yourself.

Attribution

This brings us to the issue of attribution and knowing when and why to go from being on the record with a source. Always begin a conversation by identifying yourself as a journalist (or a blogger writing “on the record”), if you want to enjoy any of the protections normally accorded to a journalist; begin and stay on the record until it becomes necessary to go off the record.

After “on the record,” which means you can write or broadcast anything said in the conversation, comes terms such as “on background,” “off the record” and their many hues. In a background conversation, you can write down what is being said but cannot attribute it directly to the source — they become generally identifiable to the reader as “a source in the Defense Department” or “a senior manager at Example Corp.” Remember that background information still needs to be confirmed elsewhere, so don’t be afraid to take the conversation back on the record to try to get the information in an attributed quote; background conversations are a matter of convenience for the source and are increasingly given by news organizations only with a compelling reason.

We’re talking here about how you handle relationships with people. We all know that there are times and circumstances that demand we protect confidentiality. Sometimes a source is giving you information that will get the person who really needs to be on the record to speak, because you come to them with information that, once they know you have it, they have to address on the record. This has worked for me with corporations, two White House administrations and a variety of other situations. What I want to emphasize is that a background quote or an off-the-record or confidential source does not make a publishable story in all but the most extreme cases. Can you prevent a catastrophe with an off-the-record quote? Publish! If it’s a matter of getting a scoop, do more legwork.

That’s it in a nutshell, the beginning of a lifetime of exploration and growing subtlety if you want to jump into the journalist’s role in society.

Mitch Ratcliffe is a veteran technology journalist, media executive and serial entrepreneur. This article originally appeared on the RatcliffeBlog and was updated by Socialbrite.
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