At the end of last week, the press reported on the jury verdict finding Rolling Stone magazine to be liable for defamation for its story, later retracted, about a gang rape at the University of Virginia. The case was brought by a University administrator who was portrayed negatively, including making her sound as if she had been indifferent or dismissive of the alleged rape, which evidence later showed to be untrue. Even though the court deemed the administrator to be a “public figure,” the jury nevertheless found that there was sufficient “malice” on the part of Rolling Stone to merit the finding of liability. While this decision may well be appealed, it nevertheless is a finding of which broadcasters and other media companies need to take note, as it demonstrates that a sloppy review of the facts of a news report can lead to liability – even when reporting on public figures and important issues of wide public concern.
Under the NY Times v Sullivan Supreme Court precedent, the decision in defamation cases quite often depends on the determination of whether the person who was allegedly defamed is a public figure. The thinking of the Supreme Court in adopting the distinction between public figures and private individuals is that the public has more interest in vetting public figures, and by becoming a public figure, individuals expect that their conduct will be under scrutiny. To adopt a strict liability standard for public figures would mean that, if any mistake is made in reporting on their actions, a press outlet could find itself facing defamation liability, even if that mistake was made in good faith after reasonable reporting had been done. To avoid this strict liability, the Supreme Court decided that, if the victim is a public figure, to find liability, the jury must find not only that the statement made by the defendant was false, but also that it was made with “malice.” What does that mean?
Malice is not used in the way that most people may think of it (as an act intended to do evil or done with ill intent), but instead it looks at whether the outlet that distributes the false content did so either knowing that it was not true, or with reckless disregard for the truth of the statements made. In other words, the media outlet being sued either had to know that what they were saying was false, they simply didn’t bother to consider the truth, or they published it knowing that there was reason to believe that the statements being made might not be fully truthful. This kind of decision – whether or not to run something on the air where the content attacks the character or integrity of some identifiable individual – is the kind of decision made by broadcasters virtually every day in all sorts of situations, including in deciding whether to run political ads by non-candidate groups, when the truth of those ads has been questioned (see, for instance, our articles here and here). Not investigating the truth of allegations, especially when questions have been raised about their truth, can lead to issues like those that resulted in the finding of liability for Rolling Stone.
The Rolling Stone case shows that, despite an individual being found to be a public figure, liability is still a possibility where a judge or jury finds that the facts show that a media company was too lax in its reporting, and that it either ignored evidence that a report was incorrect, or started its investigation with such a preconceived notion of the end result that it simply did not bother to fully investigate the story it disseminated, even if any reasonable investigation would have revealed significant questions about the “confirmation” of the alleged facts that it was conveying. In today’s political climate where the media and the press have come under much scrutiny about their fairness and thoroughness, juries may be even more willing to second-guess whether any news investigation was reasonable or whether there were warning signs that were ignored by the media company so that it published the information with reckless disregard for its truth.
Media companies of course must be careful in their news productions to not make claims about individuals that cannot be substantiated. But, even more important, they need to caution all on-air employees, not just those in the news, to be alert to these concerns. A wild statement made on the spur of the moment by some on-air personality, that sounds like a factual assertion about a named individual’s character or integrity, can just as easily land a station in hot water as a news report gone bad. Or the continued broadcast or dissemination of a claim made by a third party (as in a political ad), whose truth has been called into question, can even give rise to potential liability. So, as in so many other areas, proceed with caution.