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Lawsuits From Everywhere

Q&A: How to Deal With Libel in an Age of Global Media

April 10, 2006

Charles Glasser started as a reporter in his teens and ended up reporting in Nicaragua, El Salvador, England and Spain. Today, he travels the world training reporters and editors of Bloomberg News how to responsibly exercise freedom of speech.

In his new book, the International Libel and Privacy Handbook, Glasser attempts to demystify the world's libel laws in an era when all media is global. Fresh from a trip to Japan, Glasser took time to speak to Aileen Gallagher of mediabistro.com. Excerpts:

Mediabistro: What do you do?

Charles Glasser: One of my responsibilities here is media law training around the world. With 125 bureaus and almost 2,000 reporters, that's a lot of stuff. Bloomberg journalists are required to take media law training every two years. It's kind of a rolling thing. Primarily, giving classes in Japan and India. While I'm there, other things — meeting with outside council, reviewing changes in general law, perhaps supervising some litigation matter. I wear a number of different hats here.

Mediabistro: (As a young lawyer, Glasser argued a case in the First Circuit Court of Appeals.) What happened in that case?

Charles Glasser: The case is called Levinsky's Inc. v. Wal-Mart Stores Inc., where I won a reversal of a jury verdict on defamatory meaning. Does the word "trashy" defame you? If I said your store was trashy, have I defamed you? The trial court said yeah, trashy. I wouldn't go to a store that was trashy. The holding was that when a word is capable of so many different meanings, and most of them are just opinion or not defamatory, then the word can't be defamatory. Trashy is one of those words. The word is capable of so many different meanings.

I did a lot of access work and really got into the public interest work. I got to do a great case Doe vs. Department of Mental Health. It's a tragic story but a great example of how the press can be everything it's supposed to be. Pardon my proselytizing, but it is a religion. A mildly retarded young lady was in a state home and she was murdered by another patient, both in the state care. The facts seemed to indicate that her murder was largely due to incompetence and negligence of the caretaking staff.

"If you teach people to get it right, if you teach people to be fair, be responsible, most of all, be clear.… More often than not, libel cases occur because something wasn't well thought out and it wasn't well supported."

Mediabistro: But she's a column and that's protected, right?

Charles Glasser: Remember, it's not marked as an opinion column. She was just a reporter. She's a columnist. That's part of how I won the case. Their argument was "Wait a minute, this is in a news page, not on the op-ed page." I convinced the court — I know I'm bragging, but it's a good case — that there are things in a newspaper that are the indicia of opinion. One of them is the fact that she's got a standing sig with her picture and that indicates to the reasonable reader, column. Readers are smart enough to know that a column has that flavor of opinion. Opinions are not wholesale protected. Opinions can be defamatory. I like to think it was my experience as a journalist that I was able to flesh out what the facts were that you could then present to a judge.

Mediabistro: How does media law training work at Bloomberg?

Charles Glasser: If you teach people to get it right, if you teach people to be fair, be responsible, most of all, be clear. Most libel cases come from a well-founded, well-intended mistake. There are not all that many cases where a reporter acted with knowing falsity and reckless disregard for the truth. More often than not, libel cases occur because something wasn't well thought out and it wasn't well supported. The research wasn't as clean and clear as it should have been.

The amount of pre-publication review varies wildly across news organizations. I can tell you at Bloomberg our general approach. I could never read everything. We move 5,000 stories a day and it's just not going to happen. My driving principle is not to put on the brakes. My driving principle is break the news, beat the competition. That's my first job. How can I facilitate breaking the news?

What we have here is sort of a red-flag system. We train editors and train reporters how to get it right, how to be fair, how to be clear, how to be cognizant of certain issues. If one of those libel-y things comes up, take a good look at it and then call me. We train them to reach out to me. Long, investigative pieces I always read. Bloomberg publishes a magazine, Bloomberg Markets, and because it's a monthly, it only makes sense for me to read it ahead of time.

"The defenses to libel are similar the world over if you reach for the highest standards."

Judges, at least thoughtful judges, are cognizant of the drive to publish quickly. Indeed, if a judge really believes, wait a minute, maybe Gallagher got it wrong but my gosh, she was writing about toxic water in the baby food and if she didn't write about it right now, who knows what could have happened? There you have a public interests that demands what Justice Brennan called the "exigencies of the deadline." On the other hand, what if Gallagher was working on a story that was much more enterprising… Six years ago, a famous politician was charged with drunk driving. Does the public need to know that right now, and so much at the expense of fact-checking a little more?

One thing that, in the Bloomberg way, we emphasize here a lot, is we must remember, that driving force is the public interest. Not, NOT competitive disadvantage with other news organizations. The London Telegraph was accused of rushing a story to print and, at trial, when pressed about why the rush, the editor had to admit that, "Well, we were afraid the other newspapers were going to get the story." What are we here for? What are reporters here for? We're not here to simply beat the competition, we're here to serve the public interest. I honestly believe that, naive as it sounds. Unfortunately, we lose sight of that. And when we do, we get into trouble.

Mediabistro: In the book, you're examining the libel laws of several different countries. Who has the toughest?

Charles Glasser: There's the toughest law and the toughest atmosphere. China is tough because the legal system is the most impenetrable. India is one of the few countries, and the only one in Asia, that will read American law. The former attorney general there told me in a conversation that we'll look at law anywhere and if we think it comports to our constitution, we'll cite it. India has cited Times v. Sullivan. China's legal system is the scariest and most impenetrable, and they have criminal penalties so that raises the stakes. In terms of the most difficult, right now England is still the worst because the burden of proof — the burden of truth — as in most of the world, the story is assumed false until you prove it true.

What we teach here is, knowing that as a reporter you've got this responsibility of proving the truth, doesn't it makes sense that when you're preparing a story, you dot every I and cross every T, save every document and really do a great job? You can look anyone in the eye and say "No, here it is, boom, boom, boom."

The defenses to libel are similar the world over if you reach for the highest standards. You grew up believing that truth is a defense. In Germany, truth is not an absolute defense. If a story makes a defamatory — we'll say unflattering — statement about somebody, the fact that it's true is not enough to justify its publication. It must serve the public interest. The famous illustration is one of the German papers published a story referring to Gerhard Schroeder's dyed hair. You've seen a picture of the guy. It's total shoe polish. He sued and won. It may have been true, said the judge, but where's the public interest in that? How does that serve the public? A judge is going to say, "You've clearly damaged somebody's reputation. The question is, can you justify it?" True isn't enough, you have justify it by dint of service to the public. That's just an interesting difference that people don't think about.

"It's not just so much where the article is available, but where the impact of the article can be felt."

The most difficult problem with England is that the judges, unfortunately, are insanely generous to people that we would consider scoundrels. I'm not kidding. It's shameless. We've been threatened by people who are notorious — Russian mobsters, Arab oil sheiks with ties to terrorist funding — who can still bring claims in England. If you have enough money in England, just go to down to Savile Row and get the right suit and the right lawyer and it's just remarkable.

Mediabistro: What does the global nature of the web mean for libel?

Charles Glasser: Because of the Internet, your article can arrive in France and Germany with a few mouse clicks. In England, judges have said, "Enough with the libel tourism." The fact that the article was available in England isn't enough. If the plaintiff (they call them a claimant) has a reputation in England and has interests in England and the article and be said to have impacted those things, then they're going to take jurisdiction. So it's not just so much where the article is available, but where the impact of the article can be felt.

Mediabistro: What's stopping online writers, like bloggers, from getting sued?

Charles Glasser: If Mrs. Smith has her web page and she's living in Florida, she's got no assets in Italy. She doesn't have an office in France. She doesn't have a bank account in Germany. Let's say she writes about a German guy and the German guy sues her in Germany. Even if the court in Germany takes jurisdiction and even if the German court rules against her by default or otherwise, American jurisprudence will not enforce foreign judgments that do not comport with the First Amendment. I cannot sue you in France under French libel law and then take my judgment to a U.S. court and then say give me all your money. That doesn't stop other shenanigans from happening. If Mrs. Smith was in the EU, she's got problems. The treaties require full faith and credit across countries. A judgment in France will be enforceable in Germany.

The other problem with this isn't so much Mrs. Smith and her weblog, but let's say that a corporation publishes a website where they do comparative advertising where they say our widgets are better than Brand X's widgets and Brand X is in Germany. If the publisher of the statement that's sued upon has assets in Germany, has an office, has employees, has a bank account — like Bloomberg does, like AP does, like NBC does — then you can't just thumb your nose at it. CNN can be sued anywhere and CNN can have assets seized everywhere. And much more importantly, from a human standpoint, remember that most of these countries have a criminal libel law. That puts at risk not just the money and the stuff, but people — the most important asset that any company's got. Many countries, for instance, France, can actually imprison the director of publications even though that person had nothing to do with the publication. They're responsible. Companies and news organizations need to be aware of their global impact.

Mediabistro: How does Bloomberg deal with that?

Charles Glasser: We do not change our stories for their venue. A story that is good enough for Bloomberg is good enough for Bloomberg globally. Some organizations do. Some organizations will publish a scathing editorial about Singapore and that same story will not appear in their Asian edition. We have a more practical and more ethical approach: If we meet the highest standards of good journalism, we will take our shot in court anywhere. Good journalists really get that. If I can show you that my story is accurate, clearly written, fair, not motivated by an agenda, it is transparent with regard to my sources, it is transparent with regard to how I obtained material, if my article most of all serves the public interest, is clearly written so there is not ambiguity about who did what bad thing, then I will stand up in any court and defend that. You have to. Any less, then why bother? Does that mean we will win every case? Probably not.

Mediabistro: How does your journalism training work?

Charles Glasser: Good journalism is the best legal defense there is. As a journalist I know the techniques. As I lawyer I know where the weak points are. Then we'll highlight the little quirks in local law. Defamatory meaning in Japan is very different from here. If I say someone here files for bankruptcy, there's nothing bad about that. In Japan it's very shameful. Also in Japan, the dead can be libeled. If libel law is culturally reflective, then look at Confucian and Buddhist influences in society. The family can bring the claim. We emphasize the techniques of good journalism.

Mediabistro: How often are these international libel suits filed?

Charles Glasser: Global publishers are forced to defend collectively at least a hundred international lawsuits a year. They are very expensive and they are very, very damaging. Being sued for libel is one of the most unpleasant, emotionally exhausting, emotionally expensive experiences that I wouldn't wish on a dog. Nobody likes getting accused of getting it wrong. Reporters may best be served by thinking of what they do as a craft rather than a profession. And to have one's craftsmanship challenged is a necessarily unpleasant and disturbing thing. Any reporter who tells you no big deal, let 'em sue me for libel, that's the kind of guy I worry about.

There are two kinds of reporters in this world: There's the woman who lies awake at night and goes, "Gosh did I get it right, did I miss something." I'll take that person every day of the week. The guy who says, "Aw, I couldn't be wrong. Prove it," that sort of hubris. Those are the kinds who keep me awake at night.

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