Libel-Proof Your Writing: The Importance of Accuracy and Attribution
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Libel-Proof Your Writing - Charles DeLaFuente
Copyright © 2013, 2014 by Charles DeLaFuente
All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical method without the prior written permission of the author, except in the case of brief quotations embedded in critical reviews and certain other noncommercial uses permitted by copyright law.
Printed in the United States of America at McNally Jackson Books, 52 Prince Street, New York NY 10012.
www.mcnally/jackson.com/bookmachine/libel-proof-your-writing-charles-delafuente
Second edition.
ISBN 978-I-938022-72-2
ISBN: 9781483528830
For Jill, who has put up for years with the torn-out scraps of newspapers lying around the house that formed the core of this book.
Table of Contents
Acknowledgements
Introduction
Chapter 1 What is Libel ?
Chapter 2 Actual Malice
Chapter 3 Other Defenses Worth Knowing
Chapter 4 What Good Editors Look for
Chapter 5 What Lawyers Look for
Chapter 6 Who Said?
Chapter 7 Unattributed Facts
Chapter 8 Accepted Fact
Chapter 9 Induced Reliance
Chapter 10 Lurking Libel
Chapter 11 Peripheral Libel
Chapter 12 Plain Error
Chapter 13 Implication
Chapter 14 Tone
Chapter 15 Ambiguity
Chapter 16 Headlines
Chapter 17 Reviews
Chapter 18 If You’re Sued
Chapter 19 Conclusion
About the Author
Appendix
Acknowledgements
No book, no matter how simple its message, can be completed without the help of many professionals. In my case, the assistance came first from Barry Adler, who offered invaluable suggestions on navigating the mysterious world of publishing.
Then David McCraw graciously reviewed the manuscript and provided suggestions that helped me expand it. He, George Freeman and Adam Liptak graciously offered their perspective on libel lawyers’ thinking processes.
As the book neared completion, Brent Bowers took over as editor par excellence, cleaning up my prose and pushing me, wisely, to offer more specific examples of how these examples of flawed journalism could be repaired.
Jacqueline Olsen handled the formidable tasks of formatting and proofreading the text with aplomb.
Neil Keller designed the eye-catching cover, and did so, as we say in the newspaper world, under deadline pressure.
And that photo of me on the back cover is the sure-handed work of my daughter, Carla DeLaFuente.
Beth Steidle at McNally Jackson then adeptly turned assorted electronic files into the finished product
Introduction
This is an untraditional book about libel. It is not primarily about libel law, nor about all the defenses that body of law provides. Rather, it is about how to spot and remove libelous statements before they are published – in print or on the Internet – or broadcast, or even Tweeted or posted on Facebook. It is intended primarily for journalists and journalism students, not for the lawyers who defend libel suits nor for law students. It focuses primarily on the craft of reporting, writing and editing and how practitioners of that craft can avoid making libelous statements. It deals only secondarily with the defenses that are available to journalists and their employers who inadvertently publish or broadcast false information.
Avoiding libel is, in many ways, similar to crossing a busy street safely. The pedestrian has to look both ways to see what’s coming. The journalist has to look both ways to see who is making an assertion that is about to be distributed, whether in print, over the air or, increasingly, on the Web. If the answer is no one, it is the journalist, and his or her employer, who is stating the claim as a fact, often without meaning to do so. Here is a real-life example of what can go wrong when a writer fails to put serious charges in the mouth of whoever uttered them.
Who said the mortgage broker told the appraiser to lie? Look around. It’s not the appraiser. It’s not anyone. So it must be the newspaper, stating this as a fact. The repair job is simple. It is to make the invisible visible. Someone (very likely the appraiser) said that the broker asked the appraiser to ignore the water. It’s the reporter’s job to name that someone, so that the claim has a foundation. That is not a bulletproof solution. Publishing a false statement made by someone else may expose the publisher to liability. But attributing a claim like this to someone would go a long way toward negating what a plaintiff would have to prove to hold the publisher liable. (Holding the speaker liable is a different issue.)
Making the writer think about the attribution may also push him or her to question the underlying assertion. If it’s a provable fact, that’s the best defense there is to a libel claim. As the lawyers say, truth is the ultimate defense. If, on the other hand, the statement is not yet provable, like A calling B a liar, then thinking about the need for attribution may lead the writer or editor to think about the necessity – or even the fairness – of using it, or eliminating or hedging it. In the appraiser example, for instance, little would be lost by changing the mortgage broker arranging a refinancing asked him to pretend that it wasn’t there,
to someone who wanted to see a transaction go through asked him to pretend that it wasn’t there.
The point is still made, but without the anonymous finger-pointing.
There are many more examples of this unintended attribution in Chapters 6 through 8, and it is an issue that crops up alongside other issues in other chapters, too.
To return to the pedestrian analogy: the average newspaper reporter has more help than the average pedestrian. It is as though a sighted person nevertheless had a seeing-eye dog. The editor or layers of editors who typically review newspaper copy may well catch errors that the reporter made. Some editors have an uncanny sixth sense about these things.
That’s the good news. The bad news is that bloggers and other Web journalists, typically with much less of a support structure, need to review their own work carefully, even if it takes a precious few minutes. For them, knowledge about what to look for, and how to repair it, becomes more important than it ever was.
My hope is that this slim book will become the equivalent of The Elements of Style for journalists, and will make both writers and editors properly cautious – without deterring them from their invaluable work. If their work is libel-free to begin with, there will be fewer suits to defend.
Chapter 1
What Is Libel?
Libel is a false (as in erroneous or inaccurate or maybe even misleading) statement about a person – or a company – that harms the subject’s reputation. It is not every false statement. If there is no harm to one’s reputation, there is no libel. The false statement is an error, which should be corrected, but that is an issue of good journalistic practice, not of libel law.
False statements that cause some sort of damage to the subjects are the kinds of assertions that are libelous. In the pantheon of lawsuits that a person might bring, a libel suit is what the legal system calls a tort – not so different from a suit stemming from a car crash. Someone injured in a crash has to do two things: prove that someone else (often another driver) was at fault, and establish his or her own injuries. Someone suing for libel has to prove that the statement was false, and prove some damages that resulted from its dissemination.
Defamation is a broader legal term for harm caused by false statements, and it is not uncommon to hear someone say that an article or broadcast or statement is defamatory. Defamation is, technically, broken up into libel, which covers printed and broadcast matter, and slander, covering the spoken word. We’ll stick with the term libel for all false and damaging statements.
What are damages? Imagine, for a moment, a news report that says that a prominent lawyer was arrested for a gunpoint rape. Then imagine that it turns out that the rape suspect was an ex-convict with a similar name in the same city, and that a reporter, after a hasty Internet search, mixed up the two, and the erroneous information was published or broadcast. In that scenario, there is harm. Imagine that it takes a few days to get this all sorted out. In the meantime, the lawyer’s clients may be reluctant to deal with him. Even afterward, there may be some clients who never hear that the report was incorrect. And there is the mental anguish that the lawyer went through until the facts became clear.
What the reporter did was, legally speaking, the equivalent of running a