The price of "winning" a libel suit can be very high. But the cost involves much more than lawyers' fees. The mere process of defending a libel suit, no matter how groundless the claim, diverts time and effort from the normal business of reporting the news; it interferes with the editorial process in publishing related stories; it calls into question the credibility of the entire news staff; and it exacts on the individual reporter an emotional toll that may affect work even after the suit is resolved.
It is also an unfortunate fact that newspapers can lose libel suits for reasons that have nothing to do with the truth or accuracy of the challenged story.
For these reasons, the first goal of the newsroom should be to avoid libel suits wherever possible, without compromising the integrity of the story. The second goal, where damage to reputation is unavoidable from the facts of the story, should be to reduce the newspaper's risk of liability and strengthen its ability to dispose of the suit quickly.
The guidelines in this section are arranged with these goals in mind. Suggestions are offered for dealing with libel concerns at each stage of the editorial process, from investigation through writing, editing, legal review when necessary, and after publication. Traditional listings of libel "defenses" and definitions are generally avoided, on the theory that these are technical rules developed by lawyers for use in lawsuits. When considered outside the practical context of the news-gathering process, they are confusing at best and dangerously misleading at worst.
Still, in a libel suit, the editorial process must be translated into and reconciled with those legal principles. Therefore, an attempt has been made to incorporate the technical rules into guidelines and, in some cases, to include mention of important court cases, as a useful "shorthand" for discussion purposes.
In using these guidelines, it is critical to recognize that they do not try to address matters of journalistic practice and ethics. Answers to questions about the adequacy of an investigation, the reliability of a source, and verification of facts in general will not be found in the guidelines. These are matters of professional training and editorial judgment that will vary with the circumstances of each story and should be left to the sound editorial policies of the newspaper.
Where the guidelines suggest additional investigation or caution in reporting certain matters, these suggestions are intended to strengthen the newspaper's defenses against a libel suit. They are not intended as rules to be followed mechanically in all cases, and should not be interpreted as either a summary of, or a substitute for, sound journalistic practices.
In applying these guidelines, it is helpful to focus on certain practical "truths" that are probably self-evident to any news organization that has had to defend even informal claims of libel:
1. Any statement or inference (whether intended or not) that can be read as damaging to the personal or business reputation of its subject may be libelous. In practical application, no more technical definition of libel is needed.
2. Although in theory a plaintiff must prove falsity to establish a claim for libel, the truth of a story is not a guarantee against being sued. The causes of libel suits have as much to do with the subject's interpretation of the story as they do with the technical truth or falsity of the statements published. Although some courts have held that defamatory meaning may not be imputed to true statements libel suits are frequently brought on the basis of completely true statements.
3. Knowing the truth and proving the truth are two different things. The first may be based on reliable sources, second-hand information, and the training and experience of the reporter; the second requires credible and willing witnesses, direct evidence and provable facts. Proving the truth in a lawsuit can be expensive, and in some situations may be impossible.
Finally, in legal review of a story, it is important to keep a clear distinction between the lawyer's and the editor's roles. The function of a newspaper's lawyer should be to identify all risks, suggest ways to minimize those risks, and assess the evidence available to defend the newspaper, if necessary. The decision of whether and what to publish should be made by the editor, who is in a position to weigh the identified risks against the importance of particular facts and the news value of the story.
BACK TO TABLE OF CONTENTS: PART III