By Joe Peters
First, a disclaimer: I am not an attorney, and I don't even play one on TV. Do not consider any of what follows as legal advice. Instead, use this to help formulate your own approach to ensuring the quality of your publications and insulating yourself against libel.
In some form or another I have spent my entire professional life in the publishing realm. From newspapers, to magazines, to books, to electronic publishing. The people for whom I've worked have ranged in both their finances and experience. Yet in all this time and with all these resources, outside of a one-time token effort -- coincidentally around the time of possible suit -- none of the organizations for which I have worked have ever presented any thoughtful discourse on libel and the overall integrity of their publications.
Sure, none of us want to end up in court, and all of us like to think we hold to high standards of ethics. By the same token, we all like to think we are good drivers, and no one really intends to crash his or her car into someone else's. But most of us do make mistakes -- perhaps bad habits that manifest themselves on occasion, and only then, after the fact, do we learn the lesson.
Libel and its distant cousin invasion of privacy often are not a matter of ethics but a matter of quality control.
Let's first tackle libel. For a quick primer, consult the libel guide in the AP Stylebook. In this country, when talk of libel, we almost always mean it in the civil sense as opposed to the criminal. In a simple definition, libel is the publishing of false information. In a practical sense, it is the publishing of false information that defames a living a person or organization and causes some measurable financial loss.
You cannot libel a dead person.
The boundaries of libel are constantly moving. While many states define libel statutorily, libel law for the most part is shaped through court decisions. A lot of people begin discussing libel by bringing public vs. private people and various other shades of the balance between libel and our First Amendment rights. I think this to similar to trying to explain murder to someone by starting with the concept of not guilty by reason of insanity.
Yes, in a landmark case, the Supreme Court ruled in 1964 in New York Times vs. Sullivan that when the plaintiff is a public official, he or she must prove the defendant exercised "actual malice" in publishing of the false information. Since the court did not expressly define actual malice, there is still room for interpretation, but in general, not only must the public figure (the standard in Times vs. Sullivan was expanded in later decisions to encompass celebrities as well as public officials) prove the statements were false, but also that the defendant knew or should have known their falsehood but deliberately published them anyway.
What this posture reflects is the underlying premise of the First Amendment: That in order to be a free society, we must be allowed to criticize our leaders, political and otherwise. As a society we are willing to tolerate a few ungrounded accusations to ensure that valid dissent is not suppressed.
There is nothing in the First Amendment that gives us the right to lie or harm. The press and the public it represents has a right to free discourse, but understood in that right is a responsibility to do so wisely.
What every libel case comes down to is a simple rule "print what you know to be true." Even then that doesn't guarantee safety. We all have a right to privacy as well. Simply, you can boil all the legal rhetoric down to two questions about your reporting:
We all have different standards of truth and value. In an interest of self preservation, publishers, editors and reporters need to share the same standards, at least professionally.
How do you go about this?
First, start with good attorneys, ones that read and comment on your publication and are willing to regularly review libel and privacy issues with your staff. Your attorneys need the journalists' perspective. And journalists would be well-served to understand the legal quagmire they face with every story, graphic or photograph published. Working with an attorney only after a suit has been filed is like going to the dentist only after your front teeth fall out. By the same token, if your dentist has no interest in seeing you unless your teeth are falling out, it's time to find a new dentist.
Second, create a practical quality control policy. Your ultimate goal should be ensuring the integrity of your publication. If you focus only on meeting current libel standards, you'll be opening the door for shoddy work that somehow manages to avoid creating a suit. Whatever approach you develop, develop it with the entire staff. There are countless policies written by well-intentioned attorneys and publishers, but these policies often lie buried under the paper work on a reporter's or editor's desk. Build something that works.
Third, keep your policy alive. Whatever standards you set in place, review and challenge them on a regular basis. Ensure that not only your new staff are aware of these standards, but that your veteran staff is familiar with them too.
Four, be consistent. One of the big cues to a possibly libelous situation is when something happens by surprise. By following a routine you minimize the surprises and you also shore up your defense -- you have done the same thing for 10 years and it has worked; there was no reason to believe that your editorial process would fail this time. On the other hand, if you break from consistency, you invite scrutiny -- why was this the one time you broke from routine? A plaintiff's attorney will use such a break from routine or policy as sign that perhaps an error was intentional.