Fact-checkers around the world are constantly facing legal threats as a result of their work. In the U.S., some have faced libel suits. Although defamation law varies from state to state, libel generally occurs when a false and defamatory statement about an identifiable person is published to a third party, causing injury to the subject’s reputation. A libelous statement can be the basis of a civil lawsuit brought by the person or group allegedly defamed. In this blog, the FLSI explains 11 practical pointers for U.S. fact-checkers to help avoid this type of legal action.
1. Be sensitive about using words that connote dishonest behavior and ensure they are fully supported.
Words such as “lie” or immorality imply dishonest traits, and courts have sometimes held that they can support a libel claim, depending on the context.
2. Be careful what you put in writing; you may have to disclose it if you are sued.
During the “discovery” phase of a lawsuit, you may be asked to give the other side non-privileged information that is relevant to any of the claims or defenses in the case. In a libel suit, this could include all non-privileged records of your communications in connection with the story in the case. If those records show that you were biased against the subject of the reporting or not diligent in verifying the story, this could hurt your chances of prevailing in the lawsuit.
3. Check sources thoroughly.
Get independent corroboration. A source could have a vendetta against the subject and wilfully or unintentionally misrepresent the facts for his or her own purposes. Confidential sources, such as government employees, may disappear or recant in the face of a lawsuit. Don’t rely on someone else to be accurate.
4. Do not let your opinion about whether someone is a public figure or official color your decision to verify the accuracy of a story.
Juries do not respond favorably to reporters who fail to confront their subjects with defamatory information and provide them with an opportunity to comment.
5. If your fact-checking work focuses on the courts, make certain you understand criminal and civil procedure and terminology and attribute your reporting to the court records or proceedings.
Be especially careful to restate accurately any information obtained about arrests, investigations, and judicial proceedings. Cite to the court record or official report to make clear the fair report privilege applies, which shields this reporting from defamation liability.
6. Be cautious when editing.
Make sure the story does not convey the wrong information because of a hasty rewrite.
7. Watch for headlines and cutlines that might be defamatory.
This applies even when the text explains the story.
8. Make sure news promos or teasers used to stir audience interest are not misleading or defamatory.
9. Be wary of using generic video footage or file photos when reporting on an activity that might be considered questionable.
10. Under the republication rule, news outlets can be sued for republishing the defamatory statements made by a third party.
Check out any factual allegations contained in such statements as carefully as you would other statements in a news story.
11. If contacted by someone threatening a libel suit, be polite, but do not admit error or fault.
Talk the case over with your editor, supervisor, or attorney immediately, and follow procedures established by your news organization. You can also contact the Reporters Committee for more assistance, particularly if you are an independent journalist.
This blogpost contains information from the FLSI’s Fact-Checker Legal Guides, which are designed to provide an overview of key legal issues relevant to the work of fact-checkers. While these guides can help fact-checkers better understand their right to gather information and produce fact-checking reports and the legal protections available to them, it cannot and is not intended to take the place of specific legal advice from a licensed attorney in their jurisdiction. For more information, see the Reporters Committee’s A Reporter’s Guide to Pre-Publication Review.
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