RFTM Ch. 6: Communications Law

First, let's look at some general concepts:

Libel is defamation by written words, including stories, headlines, photo captions, TV scripts that are then read out loud, online content, ect. It's a degree apart from slander, which iss defamation by spoken word.

There are several elements of libel, including ...

... defamation. Did the words injure a reputation? It must be phrased in a literal way.


... identification. Was the person identified, directly or by reference?

... publication. Was the item actually published?

... falsity. Is the statement false? The burden is on the plaintiff -- not the defendant -- to prove it was false.

This is where most libel cases are thrown out of court, provided that the news organization did their due diligence in reporting and the story is, in fact, clearly true. If it's true, then there cannot be libel.

... injury. Did the accused actually suffer some form of harm as a result, such as monetary losses, harm to reputation, humiliation and/or mental anguish?

... fault. Did the news organization make the statement intentionally, recklessly or negligently? Did the news org know it was false, and shared it anyway? Did the news org fail to do due diligence in checking out the claim before reporting it? Did the news org have a reckless disregard for the truth?

Fault is very difficult to prove. The plaintiff must prove the news org knew facts that would call the story into question; refused to examine contradictory evidence; relied on an inherently unbelievable source; published/posted/broadcast the story without investigating; and/or simply made up the story. This is what is known as actual malice.

It's not enough for the plaintiff to prove there were simple unintended mistakes in handling the story, or that the defendant simply disliked the plaintiff. Fault is almost impossible to prove IF proper due diligence --like verifying facts, getting multiple sources to confirm information; giving the story subject a chance to rebut allegations -- is done in reporting, writing and editing the story.

Many journalists are frequently threatened with libel suits -- in my professional career I was threatened many dozens of times! -- but the vast majority are never sued, because the story is true.

There are several libel defenses. Those inlcude ...

... truth; that the gist of the charge is true. If there is no falsity, then there cannot be libel. A story that harms a reputation but is true is called the truth. From a legal standpoint, a story need not be correct in every detail; just the point the defendant is claiming to be libelous.

There are, however, exceptions to the truth rule. For example, if a quote is defamatory, but cited correctly without investigation into substance. (That's why we need multiple sources on things.) Or the omission of facts that create a misleading conclusion. Or the misuse of words to create a false impression. (We have to get context right.)

... fair report privilege. That is when we correctly quote defamatory statements during (but not before or after) public meetings in all levels of government, such as those offered during a city council meeting or a criminal trial or in an official document like a police report.

... fair comment and criticism. That is, opinions based on true facts, including opinions in news stories. Yes, an unattributed opinion in a news story is bad journalism, but it enjoys the same legal protections as good journalism.

The textbook offers a good libel avoidance checklist on p. 137; please review it.

Now that we talked about libel, let's move on to invasion of privacy. It involves intrusion, or intentionally intruding on someone's privacy in a highly offense manner.

For it to be invasion of privacy, this must take place in a place where a person has a reasonable expectation of privacy, such as if the reporter was trespassing in a private home, private property or a business open to the public but privately-owned (like a shopping mall), or using an eavesdropping device, or looking inside a person's home uninvited.

Courts do not consider ordinary newsgathering techniques to be intrusive, such as examining public records naming the person; interviewing their friends, relatives, associates and enemies; requesting interviews; and anything happening in a public place (like public streets, sidewalks, parks, and publicly-owned buildings).

Next, there is the issue of publicizing private facts. To be off-limits, the information must truly be private; that is, it's information not available via any public record; facts that are not widely known; and regarding a matter that is "highly offensive" and not just embarrassing; and that there is no legitimate public interest in disclosure.

There is also false light. That's where reporting creates a false and offensive impression. Legally, it's similar to libel, and a defendant must prove actual malice. Again, if we interview a wide variety of sources, double-check our information, give the story subject an opportunity to respond and keep the context of the story based on what we discovered and confirmed, then this should never be a real threat to us.

Let's now move on to access to public proceedings and records. First, at a breaking news scene like a car accident or house fire, it's important to remember reporters have no greater rights than citizens to gather at a news scene. Officials may extend access as they see fit, and they often do. But it's their call.

To help mitigate that, always carry press credentials identifying yourself as a working journalist; don't trespass on private property or cross marked police lines without permission; and obey all orders from police, even ones you don't think are right. You can always complain later.

Often, reporters access documents by citing state or federal Freedom Of Information Act (FOIA) laws, regarding access to such documents. FOIA requires government to make most documents publicly accessible, but there are exceptions.

Those exceptions usually include: classified information; information regarding internal personnel rules and practices;; trade secrets; confidential commercial information; memos that would reveal decision-making processes; information that would intrude on personal privacy; police investigative files which, if disclosed, could cause harm or compromise an ongoing criminal investigation; and other limited exceptions.

It's hard for courts to close or otherwise restrict courtrooms or court proceedings to the press, unless media attention threatens the fairness of a trial. Courts may sequester jurors, issue gag orders to witnesses, seal some court files, or delay trials, but only in very rare instances can they legally shut the press out of a courtroom.