The Complete Writer
Part VI. Ethics and Legality: Rights, Obligations, and Risks

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Libel & Defamation

Insured or no, writers and publishers rightly try to avoid accusations of libel.

The Associated Press Libel Manual defines libel as “injury to reputation.” It says, “Words, pictures, or cartoons that expose a person to public hatred, shame, disgrace, or ridicule, or induce an ill opinion of a person are libelous.” As the same guide points out, this extends beyond the obvious: the New York Times, for example, was threatened with a lawsuit over its matrimonial column after practical jokers announced the engagement of two people who hated each other.

Omitting the name of a person you are defaming may not protect you. If a story’s details identify, say, a rumored drug dealer who has not been arrested and charged, that person may have a case against the writer. Quoting someone else’s defamatory remarks accurately is also not protected.

There are two main defenses against libel:

1. Provable truth. To succeed with this defense, you must show that the defamatory statement is substantially correct.
2. Privilege. This legal concept holds that some people, under some circumstances, may make false, malicious, or damaging statements without fear of prosecution.

There are two kinds of privilege:

1. Absolute privilege. It applies to legislative, legal, and official proceedings, and to the contents of most public records. A legislator, for example, may make a statement on the Congressional floor that outside those halls would be libelous. A criminal prosecutor may accuse a defendant of acts and motives in court and may phrase the accusation in terms that would be actionable if they were uttered outside the courtroom. The theory behind absolute privilege holds that airing certain statements and accusations serves the public interest.
2. Qualified privilege. This covers the press. It means you can report a speaker’s statements made under absolute privilege—if your report is fair and accurate, and if the statements really are privileged.

Remember, however, that public officials enjoy absolute privilege only when they are speaking in official proceedings. Statements made before a public gathering of a private group, such as the Rotary Club or Soroptimists, are not privileged. Also, legal briefs, complaints, or other papers are unprotected until they are filed in court.

You can lose qualified privilege by inaccurate reporting or by publishing statements with malice or reckless disregard of their truth or falsehood. Errors in reporting privileged statements may be taken as evidence of malice.

Fair Comment

Commentary and criticism on matters of public interest, such as art exhibits, literary works, performances, architecture, athletic events, and the like, are protected by the defense of fair comment. Even severe criticism, as long as it is not written maliciously, is acceptable. Any facts stated must be accurate, and commentary must be pertinent. You may blast an actor’s inept stage depiction of a philandering husband, for example, but you may not observe that his performance is disappointing compared to his fabled off- stage exploits.

Ethical Behavior

Ethics has to do with how we treat the people we write about and the people we work with. Ethical behavior extends beyond mere good will or malice; it also takes in vaguer issues of propriety and intent. Sometimes it concerns the way things seem as much as the way they really are.

To behave in an ethical manner means to conduct oneself in a way that never compromises one’s own or one’s employer’s honesty or credibility. If you have taken many journalism courses, you have undoubtedly heard several lectures on ethics. But it is such an urgent subject—one too often underplayed—that we should take some time here to review the industry’s standards.

Codes of ethics

The Society of Professional Journalists

Let’s begin with the Society of Professional Journalists’ Code of Ethics. SPJ is the premier trade group for journalists, whether they work for newspapers or magazines. This version, which appears to be the most recent, is posted at the SPJ website.

Under the First Amendment, the document is not legally enforceable; it’s intended as a set of guidelines. Where I have anything to add, I will enter my comments in italic type.

Preamble

Members of the Society of Professional Journalists believe that public enlightenment is the forerunner of justice and the foundation of democracy. Ethical journalism strives to ensure the free exchange of information that is accurate, fair and thorough. An ethical journalist acts with integrity.

The Society declares these four principles as the foundation of ethical journalism and encourages their use in its practice by all people in all media.

Seek Truth and Report It

Ethical journalism should be accurate and fair. Journalists should be honest and courageous in gathering, reporting and interpreting information.

Journalists should:

Take responsibility for the accuracy of their work. Verify information before releasing it. Use original sources whenever possible.

This should go without saying. In Chapter 17, we touched on the importance of checking and double-checking facts. If any statement or claim appears incendiary, outrageous, or in any way questionable, you should check it with another, independent source.

Remember that neither speed nor format excuses inaccuracy.

Provide context. Take special care not to misrepresent or oversimplify in promoting, previewing or summarizing a story.

Gather, update and correct information throughout the life of a news story.

Be cautious when making promises, but keep the promises they make.

Identify sources clearly. The public is entitled to as much information as possible to judge the reliability and motivations of sources.

Attributions to “informed sources” and the like are highly suspect, and many editors will not accept them.

Consider sources’ motives before promising anonymity. Reserve anonymity for sources who may face danger, retribution or other harm, and have information that cannot be obtained elsewhere. Explain why anonymity was granted.

Assume that a person who will speak only off the record is giving you questionable and probably unreliable information. Some states do not provide immunity for reporters; in any event, an arrest or lawsuit based on something you printed that was said by an anonymous source puts you at risk of huge legal fees and even imprisonment. Newspaper reporters work for organizations that retain lawyers specializing in media issues, but their services do not extent to freelancers, who are not regarded as employees. As a freelance writer, reporter, or blogger, NEVER promise a source anonymity! If you can’t get the story without using material from a source who refuses to identify him- or herself, drop it. To do otherwise is the height of folly.

Diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing.

When repeating any allegation about an individual, you are expected to interview that person and ask for a response to the claim. If you can’t reach the person, you should state, in your story, what you tried to do to reach him or her and the results of your effort. For example, “Repeated telephone calls to Oliver Boxankle were not returned.”

Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.

Again, as a freelancer you have no legal protection if you engage in tactics like this. Do not—repeat, DO NOT—gather information “undercover” as a freelance writer or blogger.

Be vigilant and courageous about holding those with power accountable. Give voice to the voiceless.

Support the open and civil exchange of views, even views they find repugnant.

Recognize a special obligation to serve as watchdogs over public affairs and government. Seek to ensure that the public’s business is conducted in the open, and that public records are open to all.

Provide access to source material when it is relevant and appropriate.

Boldly tell the story of the diversity and magnitude of the human experience. Seek sources whose voices we seldom hear.

Avoid stereotyping. Journalists should examine the ways their values and experiences may shape their reporting.

Label advocacy and commentary.

Never deliberately distort facts or context, including visual information. Clearly label illustrations and re-enactments.

Never plagiarize. Always attribute.

This should go without saying, but it doesn’t always seem to register with reporters (or, apparently, with the wives of presidential candidates).

Never copy any passage from any print, video, audio, or online source without placing it in quotation marks and attributing it to its source. To do so violates the owner’s copyright (and so is illegal) and compromises your employer’s ethics as well as your own.

A form of plagiarism common among journalists consists of lifting quotes. The theory goes that a spoken word cannot be copyrighted. Therefore the parts of a story within quotation marks—i.e., the things a subject said aloud—are fair game.

Even if this rationalization were correct—which it is not—the practice smells. It’s lazy journalism. It’s stealing someone else’s work. By placing the speaker’s words in a new context, it may misrepresent what was said. And it often repeats misquotations.

Minimize Harm

Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.

Journalists should:

Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.

Another precept too often honored in the breach. A friend of mine once jumped a wall into the backyard of a private home to photograph a dead child who had drowned in a swimming pool. This behavior is a large contributing factor to the low regard that journalists enjoy in American culture. Do unto others . . .

Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent. Consider cultural differences in approach and treatment.

Reporters have a power way out of proportion to their numbers and wealth. A writer who has the public’s ear can ruin a person’s reputation, business, or private life with a single remark—whether or not that remark is true. To compound the danger, it is easy for writers particularly those who cover politics or crime, to grow self-righteous and arrogant.

Keep in mind that the subjects of your stories are not one-dimensional caricatures, not good guys and bad guys, not the great unwashed, but human beings. They have mothers and fathers, wives and husbands, children and grandparents. They must keep their jobs in order to live. When you prick them, they bleed.

Recognize that legal access to information differs from an ethical justification to publish or broadcast.

Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence or attention. Weigh the consequences of publishing or broadcasting personal information.

“Privacy” varies according to circumstances. The Associated Press Libel Manual has noted that the right of privacy is “based on the idea that a person has the right to be let alone, to live a private life free from publicity.” Then it adds, “When a person becomes involved in a news event, voluntarily or involuntarily, he forfeits the right to privacy. Similarly, a person somehow involved in a matter of legitimate public interest, even if not a bona fide spot news event, normally can be written about with safety.”

A woman in Steele County, Minnesota, witnessed an assault near her isolated rural home. Later the victim was found dead of stab wounds. Before a suspect was arrested, the Owatonna People’s Press reported the witness’s name, despite her request for anonymity. She protested to the Minnesota News Council that her life could have been endangered when the newspaper identified her while the killer was at large.

The majority of the council agreed that the woman’s fears were well founded and that, given the circumstances, the newspaper should have respected her privacy.

However, they added, reporters and editors are by no means bound to honor all witnesses’ requests for anonymity.

In a more obvious breach of compassion and taste, the Sacramento Bee interviewed eighteen-year-old Peter Vanos after his brother, pro basketball player Nick Vanos, died in an airplane crash. The young man’s college basketball coaches had asked that he be left alone while he was still in a state of grief and shock. But when Vanos was asked directly if he objected to an interview, he said no, so a reporter went ahead. During the exchange, the youth broke into tears. Family members and coaches complained that the newspaper had caused further anguish that affected the freshman student’s ability to cope with his loss. An ombudsman agreed that the interview invaded Vanos’s privacy.

Avoid pandering to lurid curiosity, even if others do.

Restrain yourself from reporting a detective’s detailed comments on a murdered woman’s life as a prostitute, for example. To illustrate a story on drug addicts who ignore the risk of acquiring AIDS through dirty needles, the Philadelphia Inquirer ran a page one photo of a man shooting up. Readers called the lurid picture unduly graphic.

Morbid curiosity extends beyond crime and immorality. Any unnecessarily detailed look at misfortune that does not add to the reader’s understanding may be taken as bad taste. The Ann Arbor News once reported that firefighters found a dead man sitting on the toilet. Rescue workers at a building collapse in Bridgeport, Connecticut, had to hold up a blanket to shield a dead body from newspaper photographers; survivors complained that coverage of the story was ghoulish.

Balance a suspect’s right to a fair trial with the public’s right to know. Consider the implications of identifying criminal suspects before they face legal charges.

Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.

Act Independently

The highest and primary obligation of ethical journalism is to serve the public.

Journalists should:

Avoid conflicts of interest, real or perceived. Disclose unavoidable conflicts.

Refuse gifts, favors, fees, free travel and special treatment, and avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility.

Be wary of sources offering information for favors or money; do not pay for access to news. Identify content provided by outside sources, whether paid or not.

Deny favored treatment to advertisers, donors or any other special interests, and resist internal and external pressure to influence coverage.

Distinguish news from advertising and shun hybrids that blur the lines between the two. Prominently label sponsored content.

Be Accountable and Transparent

Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public.

Journalists should:

Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content.

Respond quickly to questions about accuracy, clarity and fairness.

Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly.

Expose unethical conduct in journalism, including within their organizations.

Abide by the same high standards they expect of others.

Bloggers’ codes of conduct

Several have been promulgated. None of them seems very good. In 2007 Tim O’Reilly proposed seven principles of blogging ethics.[1]

Though he elaborates on his points, it’s pretty minimalist. Wikipedia summarizes them succinctly:

1. Take responsibility not just for your own words, but for the comments you allow on your blog.
2. Label your tolerance level for abusive comments.
3. Consider eliminating anonymous comments.
4. Don’t feed the trolls.
5. Take the conversation offline, and talk directly, or find an intermediary who can do so.
6. If you know someone who is behaving badly, tell them so.
7. Don’t say anything online that you wouldn’t say in person.

I strongly recommend that, as a blog writer, you follow the SPJ code of conduct. A blogger engages in a kind of journalism, and so faces the same liabilities and should follow the same guidelines for common decency and ethical behavior.

And please: always keep in mind that as a freelance writer or an independent blogger, you do not enjoy the benefits provided for an employee of a corporation that has insurance, a corps of lawyers, and deep pockets.

This leaves you highly vulnerable to lawsuits and prosecution. Never forget that.

[1] Tim O’Reilly, “Call for a Blogger’s Code of Conduct,” March 31, 2007, O’Reilly Radar. http://radar.oreilly.com/2007/03/call-for-a-bloggers-code-of-co.html