Rule 1. Check Your Facts.

In the blogosphere and beyond, many lawsuits concern claims of injury to reputation, or “defamation.”  Defamation in the written form is called “libel” and “slander” when spoken.

Taking extra care to check your facts can go a long way toward reducing legal risk.

If your online activities include publishing about real people or organizations and you’re accused of injuring a reputation, truth is a complete defense.  If you can prove you got your facts straight, you’re home free.  Even if you make a mistake but can show you were careful, as opposed to negligent or reckless, you can defeat a defamation claim.

Under a →federal law, you also can be in the clear if legally dubious information, →including libel, was a third party’s contribution.  Section 230 of the federal Communications Decency Act provides important immunity for Web site producers, social networking sites, bloggers, and other hosts of interactive Internet forums.  The citizen media site, →iBrattleboro.com, was a recent beneficiary of Section 230.  A judge →dropped this community site from a libel lawsuit because of Section 230 protection.  This area of the law is new and unsettled.  Watch the video to learn more from Sam Bayard, assistant director of the Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet & Society.

When it comes to the content you create, if you find your facts are wrong, remove the inaccurate content and consider issuing a correction or retraction. Corrections and retractions can help limit legal risk.  Click on the video box above for a detailed explanation from David Ardia, director of the Citizen Media Law Project at Harvard’s Berkman Center.

Learn more about defamation and related claims.  When you’ve reviewed all of the material, take the quiz by clicking on the link at the bottom of this page.

Costly Battles

In the United States, the First Amendment and related case law offer enormous protection against defamation claims.  Plaintiffs suing for injury to reputation can encounter arduous and ultimately futile fights.

But defamation lawsuits are usually expensive for all parties.  It’s in your economic interest — not to mention in the interest of building credibility — to publish truthful information.  Whenever you’re stating a fact — especially a statement that might cause harm to reputation — invest time and effort into accuracy.  The more careful you are about checking and backing up your factual assertions, the better.

Lessons From The Newsroom

In traditional newsrooms, journalists routinely give subjects of their stories a chance to respond. 

In addition, specially trained lawyers sift through hard-hitting stories on the lookout for unsubstantiated damaging statements.  Their mission: to identify and limit libel risk.  A reputation-damaging statement — an accusation that a business person has committed a crime, for example, or that a celebrity or someone’s uncle is an alcoholic — will need to be supported with facts.

Among supporting materials: perhaps on-the-record sources, documents if available, and ample opportunity for the subject, whether a business person, community member, celebrity or his or her spokesperson, to respond.  These lawyers aren’t trying to limit publication or force reporters to pull punches.  They just want to ensure sufficient support to substantiate any potentially damaging statements and avoid negligent or reckless reporting of falsehoods.

Prevention and Protection

Internet-related libel lawsuits are increasing and bringing monetary judgments and settlements.  This money will only encourage more lawyers and plaintiffs to file libel claims.

To avoid getting caught in a litigation riptide, consider what you’re posting, creating or sending — whether it’s a blog entry, an online newsletter, a group e-mail, or some other form of publication.  What possibly identifiable people might find their reputations damaged by what you’re poised to reveal?  Are you sure your facts are straight?  Who ought to have a chance to respond prior to publication?  What needs confirmation?  How can you best substantiate what you’re saying? 

If you’re threatened with a libel suit, or if you receive a menacing letter from a lawyer, don’t back down if you’ve got a legitimate story.  Do get legal advice prior to publication.

If at any time you have reason to believe your notes or e-mails will become legal evidence, do not delete or destroy the material.  Destruction of evidence can be a felony, and it certainly won’t help your case if you are sued for libel or for any other reason.  A journalist’s destruction or loss of relevant notes comes up in libel lawsuits as evidence strongly in favor of the plaintiff. 

Word to the Wise on Preserving or Destroying Interview Notes

  When it comes to the preservation and destruction of reporting materials such as notes and files and records, it’s best to have a consistent policy — whether it’s to keep everything for some length of time (weeks, months or years), purge all files periodically, or hold everything forever. 
 
If you get wind of the possibility that there may be legal action relating to your reporting, deleting files can violate criminal laws on destruction of evidence.  Do not destroy any files relating to any anticipated legal action.

  Even if there’s no lawyer’s letter or police inquiry and you have absolutely no reason to believe there will be legal action in connection with a story, selectively deleting reporting materials that you think might get you in trouble can be used against you in court to argue you had something to hide. 

Selectively preserving only the reporting from problematic stories also can backfire in court.  If you generally purge your files every six months, but hold on to that one e-mail or notebook that worries you, that can lead to an implication you knew you had something to fear.

Be aware that homeowner’s insurance policies sometimes offer protection against defamation and other civil claims.  There also are separate policies worth considering, although they can be costly.  The Citizen Media Law Project offers →helpful insurance information.

(c) Geanne Rosenberg