Legal Protections for Media

An overview of defamation law, pre-publication best practices, and considerations when you inevitably receive a retraction demand

Defamation law recognizes that each person has a right not to be disparaged by false statements. ��A good reputation is essential to the dignity and worth of every person, and false charges that cause a person to be shunned, avoided or regarded with contempt can never be fully withdrawn.� �

The Legal Definition:

Defamation occurs when a false and defamatory statement about an identifiable person is published to a third party, causing injury to the subject’s reputation.

Element One: Defamatory Communication

• A defamatory communication is one that exposes a Plaintiff to hatred, ridicule, or contempt; lowers him in the esteem of his community; causes him to be shunned; or injures him in his business.
• When determining whether a statement carries a defamatory meaning, the Courts consider:
• The reasonable construction of the statement: The statements is evaluated in the context of the publication as a whole from the perspective of the reasonable reader or listener. Words are given their natural plain and ordinary meaning whenever possible and are not to be given strained constructions.
• The existence of ambiguous language: When the statement is capable of two or more interpretations, only one of which is defamatory, plaintiff’s case is generally allowed to proceed

Element One: Defamatory Communication

• The statement must communicate an objective fact about Plaintiff. Statements of opinion are fully protected by the First Amendment.  
• In determining whether a challenged statement is a non-actionable opinion or an actionable statement of fact, the courts consider, among other things
• (1) the specific language used (do the words themselves have a precise meaning or are they vague, hyperbolic vernacular or exaggerated?);
• (2) the verifiability of the challenged statement (is the allegedly defamatory statement capable of being proved true or false?),
• (3) the specific context of statement (what is the tone and tenor of the publication? e.g., is it a humorous piece or parody, a life-style article, an editorial or a news item? Does it include cautionary or qualifying language?), and
• (4) the broad circumstances surrounding publication (is the allegedly defamatory statement published under circumstances in which readers would understand that the author is “resort[ing] to the type of caustic bombast… traditionally used to stimulate public reaction”?).

Element One: Defamatory Communication

“Mixed Opinions” are actionable.

• When statements that take the form of an opinion imply false facts about the plaintiff, they are actionable.
• Merely couching a statement in opinion language (e.g., prefacing it with “in experts’ opinion,” or “witnesses believe” or “friends fear”) does not insulate the statement from liability if the rest of the sentence implies a false fact.
• For example, the statement “In my opinion, John is an alcoholic” implies that the speaker knows facts that support the opinion. “Doctors fear that Martha has Hodgkins disease” is another example of an actionable “mixed” opinion.

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Element Two: Publication

• Time of publication: Publication occurs at the time of general distribution to the public.  For Internet communications, publication occurs on the date the defamatory material is first posted on the Internet. Continuous publication on the Internet does not restart the statute of limitation or constitute “republication.”
• Republication of another’s statement: In general, the original publisher of a defamation is responsible for damage caused by the foreseeable republication of defamatory matter by a third party. Also, the repeater or republisher of a defamation is as liable as the original defamer. Each republication can give rise to a new claim, subjecting the repeater to liability independent of that of the original publisher. 
• Articles taken from the wire
• Advertisements
• Op-Eds
• Quotes in articles

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Element Three: Falsity

• Truth is an absolute defense to any libel action.
• Substantially true statements are also not considered defamatory.
• A statement is considered substantially true if the substance of the statement is true even if the details are slight inaccurate.
• ‘Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’

Element Four: Of and Concerning

• The Plaintiff must prove that the alleged defamatory publication refers to them.
• Governmental entities cannot bring libel claims,
• Members of large groups (usually 25+) cannot bring libel claims, unless the member was specifically identified
• The Plaintiff does not have to be identified by name if the Plaintiff is identifiable by description or circumstance. The use of plaintiff’s picture or voice is generally deemed sufficient.
• The Plaintiff must be living at the time of publication. If a defamatory statement is published after a person is dead, their relatives/estate cannot sue.

Element Five: Harm

• The heart of a libel suit is the claim that the plaintiff’s reputation was injured.
• In California, if the statement concerns a criminal offense, a loathsome disease, a female’s unchas­tity, or matters harming a person’s business, trade, profes­sion or office, damage to the Plaintiff’s reputation is presumed.

Element Six: Fault

Defamation law in the United States revolves around the fault standard established in New York Times v. Sullivan. In that case, the Supreme Court held that state defamation law is subject to certain Constitutional restraints required to protect free speech. The court emphasized that “debate on public issues should be uninhibited, robust and wide-open,” and that free speech about government and government officials is entitled to special protection.

Accordingly, a plaintiff who is considered a public figure or official has a higher standard of proof in a libel case than a private plaintiff.

Element Six: Fault

A public official or public figure must prove that the publisher or broadcaster acted with “actual malice” in reporting derogatory information.

• Public officials are government employees who have, or appear to have, substantial responsibility for or control over the conduct of government affairs. They include, elected officials, judges, administrative officials, police officers, military officials, higher-level public-school officials, public defenders/district attorneys (in some cases).
• Public figures include unlimited public figures, i.e. household names, such as George Clooney, Taylor Swift, or Michelle Obama, and limited purpose public figures, i.e. “thrust themselves into the forefront of particular controversies in order to influence the resolution of the issues involved.”

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Element Six: Fault

A public official or public figure must prove that the publisher or broadcaster acted with “actual malice” in reporting derogatory information.

• Actual malice measures the defendant’s state of mind toward the truth or falsity of his publication at the time of publication.
• Actual malice is difficult to prove because it is a subjective standard; only the defendant knows what they knew or intended when they published the defamatory statements..
• In determining whether actual malice exists, a court may examine a reporter’s newsgathering techniques. Although carelessness is not usually considered reckless disregard, ignoring obvious methods of substantiating allegations could be considered reckless.

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Element Six: Fault

In defamation suits brought by private individuals, the plaintiff must show that the challenged statement was published with some degree of “fault,” i.e., negligence or a failure to use reasonable care to determine the truth or falsity of the statement.

Defenses

Truth�

• Truth is an absolute defense to any libel action.
• Substantially true statements are also not considered defamatory.
• A statement is considered substantially true if the substance of the statement is true even if the details are slight inaccurate.
• ‘Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’

The Fair Report Privilege (aka the Reporter’s Privilege)�

Public journals are permitted to republish fair and accurate reports of certain defined legislative, judicial, executive and other “official proceedings” – even when those proceedings contain material that defames some individual or entity. 

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To successfully assert the privilege, defendant must demonstrate the following elements:

1. The statements in question must have been published in a public journal or a communication to a public journal.  (A public journal is anything published by the press or media.)

2. The statements must report the substance of a legislative, judicial or other “public official proceeding,” or anything said in the course thereof.   

3. The statement must be a fair and true report of the words or event reported upon.

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A “fair and true account” does not mean a verbatim account.  The reporter can deviate from exact content of proceeding, but they cannot change the impact of the report upon the average reader. I.e. reporter cannot add their two cents.

The Fair Report Privilege (aka the Reporter’s Privilege)

The Judicial Proceeding Privilege

Statements made in the course of judicial proceedings are absolutely privileged and cannot give rise to defamation liability.

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To successfully assert the privilege, defendant must demonstrate the following elements:

1. Statement must be made in the course of, or in anticipation of, a “judicial or quasi-judicial proceeding;”

2. By litigants or other participants authorized by law;

3. The statements must be made to achieve the objectives of the litigation

4. Statement must be “in furtherance” of the litigation, i.e., it must bear some logical relation to proceeding (rule of relevance).

The Legislative Proceeding Privilege

• Analogous to Judicial Proceedings privilege except in the context of a legislative proceeding. 
• Legislators and persons legitimately before the legislature are covered by the privilege. 

Statute of Limitations

• The statute of limitations for bringing defamation suits varies from state to state, but the time limit generally starts at the time of the first publication of the alleged defamation.
• 1yr from publication – CA, CO, AZ, UT, and OR
• 2yrs from publication – NV and WA

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Pre-Publication Best Practices

When republishing stories from the wire:

• Don’t republish blindly.
• Do not republish an article if you have reason to question the publication or story contents.

Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir. 2002) “One who repeats what he hears from a reputable news source, with no individualized reason external to the news report to doubt its accuracy, has not acted recklessly.”

Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1297 (D.C. Cir. 1988). It is well settled that “good faith reliance on previously published reports in reputable sources . . . precludes a finding of actual malice as a matter of law.”

• Ensure proper credit is given to the original writer and publication.
• To the extent possible, use embedded links.
• Monitor the story for updates and republish the updates as appropriate.

Pre-Publication Best Practices

Let the investigation drive the story, don’t let the story drive the investigation

• Journalists are not required to investigate a story before publication, unless they have a subjective doubt about the accuracy of her report or belief that more investigation is needed.
• If journalists believe an investigation may yield facts that would contradict their story, they cannot turn a blind eye to the truth by failing to investigate.
• Pursue the most obvious available sources of possible corroboration or refutation.  A reporter’s failure to ask an obviously critical question also raises the inference that the reporter entertained subjective doubts about the truth of what she was about to publish. 

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Pre-Publication Best Practices

Consider your sources

• Do not rely on sources that you subjectively doubt or where there are obvious objective reasons to doubt their integrity and credibility.

Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 283 (D.D.C. 2017) (“[I]f there is evidence that a defendant had an obvious reason to doubt the veracity of a source, then the defendant’s failure to investigate the source’s allegation prior to publication can be probative of actual malice.”).

Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494, 510 (D.C. 2020) (“[Reliance upon a single source, even an unverified and anonymous one, will amount to actual malice only if the defendant ‘had obvious reason to doubt’ the statement’s veracity.”)

• Journalists should understand what a source has to gain or lose by speaking with them.
• If a source requires anonymity or confidentiality, understand why they are making that request.

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Pre-Publication Best Practices

Utilize multiple sources whenever possible

• Journalists don’t need to interview every witness, but getting verification from multiple sources is always ideal.
• Sources can include people, documents, communications, other reports, etc.

Portnoy v. Insider, Inc., 2022 WL 16748583, *8 (D. Mass. Nov. 7, 2022). (“And while the complaint alleges that defendants knowingly relied on biased sources, Insider’s articles make clear — and plaintiff does not deny — that defendants corroborated the women’s accounts with photographs, text and social media messages, videos, medical reports, police documents, an Uber receipt, and statements from at least three friends who saw or spoke with the women soon after their interactions with plaintiff. Defendants’ independent verification of the women’s accounts thus further undercuts an inference of actual malice.”) (internal citations omitted).

Pre-Publication Best Practices

Acknowledge Known Contradictory Information:

• When a journalist is aware of hard evidence that contradicts the defamatory charges, it is not simply a failure to investigate but a failure to consider contradictory evidence already in his possession.
• Actual Malice can be found when a defendant publishes a defamatory statement that contradicts information so completely at odds with the published statement that the publication could only have been made with a reckless disregard of the truth.

Pre-Publication Best Practices

Be cognizant of deadline pressure:

• Courts frequently take into account the presence or absence of time pressure in assessing the existence of actual malice, evidencing a much greater tendency to excuse errors made in a hot news situation. 

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Pre-Publication Best Practices

When possible, attempt to reach out to the subject for comment.

• While journalists are not required to contact the subjects of the article before publication, interviewing or attempting to interview the Plaintiff dispels accusations of constitutional malice. Newton v. Nat’l Broadcasting Co., 930 F.2d 662, 686 (9th Cir. 1990).
• There is no legal obligation to give the Plaintiff a pre-publication draft for review or to identify evidence or sources.

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Pre-Publication Best Practices

Have a third-party conduct a pre-publication review

• Where a publisher has submitted a book to outside counsel for pre-publication review, courts have dismissed claims of “reckless disregard” by the publisher. Goldblatt v. Seamen, 225 A.D.2d 585, 587 (N.Y. App. Div. 2d Dep’t 1996).
• If outside counsel isn’t an option, utilize another journalist or editor.

Pre-Publication Best Practices

Publication or subject matter biases are okay

• “[N]othing in the Constitution requires the press to adopt favorable attitudes.” Freedom Newspapers of Texas v. Cantu, 168 S.W.3d 847, 859 (Tex. 2005)
• Actual malice does not exist simply because a journalist dislikes their subject or is out to “take them down,” so long as the journalist’s intent is to investigate and publish the truth.

You Receive a Retraction Demand. Now What?

Investigate the Letter’s Claims

Respond

Retract?

California’s Retraction Statute, Civil Code Sec. 48(a):

When plaintiff is defamed by a “newspaper” or “broadcast” (including radio and television broadcasts), they are not eligible for the full range of damages unless they send a timely “demand for correction” to the defendant. 

What is a “newspaper” for purposes of this statute?  It is a daily news publication.  Magazines and weekly tabloids are not “newspapers.”

When must the retraction demand be served on defendant?  Within 20 days after knowledge of the publication.

What must the demand for retraction contain?  It must specify the statements that plaintiff claims are libelous and must demand that those statements be corrected.

When must the restraction be published? The publication must publish a clear and unequivocal retraction – in a form substantially as conspicuous as the defamatory publication – within 20 days after it receives the retraction demand.

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Resources

• Digital Media Law Project: www.dmlp.org/legal-guide

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• Reporters Committee for Freedom of the Press: www.rcfp.org/resources

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• Media Law Resource Center: www.medialaw.org/model-briefs-and-practice-guides

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