You’re out on your own. You’re making a living as a freelance writer. You work hard to get assignments and even harder to deliver them. The last thing you want to worry about is a lawsuit. But the recent libel complaint filed against freelancer Susan Paterno, who wrote about infighting at the Santa Barbara News-Press in the December/January issue of the American Journalism Review, served as a grim reminder: The pen might be mightier than the sword, but it’s no automatic shield against a costly lawsuit.
No one keeps track of the total number of lawsuits brought against the media every year, but it is at least in the hundreds — in a 2005 study, the Media Law Resource Center (MLRC) reviewed 242 libel complaints, a sample of the total amount filed that year. The number of cases that actually go to trial is small — only 14 last year, according to another MLRC study. But just fighting to get a suit dismissed can be time-consuming, expensive, and emotionally wrenching. We spoke with media lawyers, journalism professors, and investigative reporters to find out what you need to know about avoiding libel and defamation suits.*
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Understand the terms
Libel and defamation are defined as publishing something untrue that could damage the reputation of a specifically identified individual or entity, especially if the statements could hurt them financially. The specific requirements vary from state to state, but generally, if you’re writing about a public figure, the plaintiff has to prove willful malice on the part of the writer. If you’re writing about a private person, they generally only have to prove negligence, usually meaning you didn’t follow good journalistic practices. Take the time to get familiar with the libel laws in your state. “It’s so important for anyone who’s publishing to understand libel law,” says MLRC executive director Sandra Baron, adding that remaining ignorant is “like getting behind the wheel of a car without knowing the rules of the road.”
Resources that define what constitutes libel and defamation include the Reporters Committee for Freedom of the Press’ First Amendment Handbook, the AP Stylebook and Briefing on Media Law, and the Student Press Association’s PHIF (Publication, Identification, Harm, and Fault) Checklist.
Closely examine contracts before signing
A contract you sign with a publication will typically reference “warranties” (things you promise, such as that the story you deliver will be free of libel) and “indemnities” (promises that you will pay certain costs resulting from a suit). Make sure that when signing any contract, you only warrant and indemnify things under your control. For example, don’t promise that the story will be accurate at publication time if you don’t have control over the editing process (a rare occurrence for freelance writers). If your responsibilities under the contract seem too broad, push back, says Erik Sherman, a freelance journalist and former head of the Contracts Committee of the American Society of Journalists and Authors. “I’ve seen too many writers just sign contracts and hope that everything would work out.”
Ensure the facts back up your theories
“Many writers come into a piece with a theory about what they’re going to find in the course of their research,” says Baron. “It’s perfectly reasonable. Scientists do the same thing.” However, scientists don’t have to worry about defamation suits, so for writers, certain precautions are worth taking. When you’re done reporting, check to ensure that your research produced the necessary evidence to support your theory. If it didn’t, let the theory go. Avoid the temptation to dance around holes in your evidence through writing that suggests a certain conclusion without explicitly stating it. Mere implications can be deemed as libelous as direct assertions. For example, let’s say someone has told you a high school teacher is having a sexual relationship with a student. You can confirm that the teacher attended several student gatherings on weekends and left one at 10pm with the student. But the teacher and the student deny the relationship, and the school says it is not investigating the teacher. Be careful about writing the story in such a way as to insinuate a relationship is taking place, based on the facts you have. The teacher’s reputation is at stake, and they could potentially win a libel suit against you.
| You may think of yourself as a writer, but in the eyes of the law, you’re a business, and this means you’ve got to toe the line like one. |
Document your findings
Gather the documentation you need to prove a potentially damaging claim made in your story. It’s not enough just to attribute an allegation to a quote made by another person or publication. For example, if you want to write that a particular person has been charged with a certain crime, don’t rely just on quotes from officials. Get the police report or court documents. “One thing reporters don’t do enough of now is digging through the records to prove their case,” says Alyssa Katz, who teaches journalism at New York University and has written for Mother Jones, New York, and The Nation. “They’re always looking for shortcuts.”
Give both sides time to respond, before you finish your piece
It’s not enough to ask your subject for an interview, and then forget about them once they respond with, “No comment.” Once you’ve crafted your piece, you should send them any allegations you plan to publish, and give them ample time to respond. Don’t call them two to three hours before your deadline. If the material is sensitive enough, give them at least a few days, or even better, a week or more. You want your timeframe to communicate that you’re not trying to pull a “gotcha” on your subject but that you’re legitimately trying to get their side of the story. Los Angeles journalist Ross Johnson did just that when he wrote a subsequent story about the Santa Barbara News-Press lawsuit for LA Weekly. Johnson knew he was wading into dangerous territory, as the plaintiff in the case had a litigious history. So he made sure to contact her team early on in his reporting and send them every point he planned to publish. “You run into problems when you come to the other side too late in the game and they feel like they’re being blindsided,” Johnson says. Shortly after doing that piece, Johnson hung up his freelancer’s hat and joined an L.A. firm that does crisis communications for celebrity and corporate clients. What he sees from the other side of table confirms what he learned on the beat: “[Clients] go bonkers when they feel they haven’t had a chance to get their say in,” he says.
Closely review every word
If you think only investigative reporters have to worry about libel, think again. Of the complaints reviewed in the MLRC report (which, it fully concedes, was an unscientific sample), less than a tenth of the cases involved investigative stories. Almost half, however, involved routine newsgathering. You can easily invite a suit through a minor — but preventable — error, like misreporting the exact charge against a criminal defendant. You should carefully review every story you write. If it contains anything you wouldn’t want said about you, double- and triple-check that you got it right. As a starting point, consider using the cheat sheet prepared by Jean Maneke, of the Legal Hotline Counselor for the Missouri Press Association, who regularly reviews stories for Missouri publications.
Don’t get tripped up by wordplay
Because of the complexities and nuances of language, words and sentences can mean different things to different people. To ensure that a double meaning in what you wrote doesn’t open you up to risk, examine whether any unintentional — and damaging — meanings could be inferred from your choice of words, or even from the way you’ve strung them together. “The mispositioning of a word makes all the difference in the world,” says Maneke. For example, if you’re doing a story about an author who based the idea for her book on another book published 10 years ago, think twice before asserting that the author “stole” the concept. You might simply have been trying to make the point that there’s no such thing as a new idea, but your readers could infer that the author committed copyright infringement.
Review the final version prior to publication
An editor’s wordsmithing, a creative headline, or a colorful caption are all prime areas within your work where unintentional libel can crop up. “A lot of times, through no malicious intent, people will tweak something here and there, and edit in a mistake,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. To make sure you’re not the unwitting victim of someone else’s slippery phrasing, request to see a final version of your story before it gets published in print or online. If you find any wording in your piece that conveys a meaning you didn’t intend, request changes and offer alternate ways of articulating the problematic phrase.
Put accuracy above speed
Online, some writers play fast and loose, while others toss in attitude like so much seasoning. Whether online or in print, however, color is fine, but inaccuracy is not. “Particularly these days, [for some online writers,] speed often is more important than factual accuracy,” says Dalglish. “You need to take a deep breath and be careful.” Don’t put aside basic journalistic practices just to get your story up first. Writing online is increasingly being held legally accountable. Eleven of the complaints reviewed by the 2005 MLRC survey involved Internet defendants, a small number, but a 50 percent increase over the number of Internet defendants in MLRC’s 2001 survey. The one exception seems to be regarding comments made by visitors to your site. So far, site publishers are not being held responsible for comments they themselves did not make. Stay on top of developments though, as this area of the law is still evolving. Check out the Electronic Frontier Foundation’s Bloggers’ FAQ on online defamation law for pointers.
Create and observe your own standard practices
You may think of yourself as a writer, but in the eyes of the law, you’re a business, and this means you’ve got to toe the line like one. It’s vital for freelancers to follow standard practices for things like storing notes and organizing the information used within stories. If you wind up in court, the more you present yourself as a professional who applies the same policies to all clients and projects, the more credible you will appear. “It’s always good, if you’re concerned about it, to keep a good paper trail,” says Jan Constantine, general counsel of The Authors Guild. “But you should be consistent. It’ll be tough to explain away inconsistent policies.” As to how long you should hang on to notes or tape recordings, the statute of limitations on filing libel suits varies from state to state, but is usually a few years or less.
Don’t depend on others’ libel insurance
Think you’re covered just because the publication you’re writing for has libel insurance? If they get sued and lose, they could turn around and sue you to recover their losses (remember the indemnities clause in the contract you signed?). Also, it’s not safe to assume that your homeowners’ insurance will cover you. Although some policies have general provisions covering libel, they can specifically exclude suits incurred in the course of business activities, which includes freelance writing, if you’re getting paid for it.
Independent writers often don’t carry their own libel insurance, as it can be prohibitively expensive, running into the thousands of dollars per year. The National Federation of Press Women (which is open to men as well as women) has a more affordable policy for its members: $51.50 to join the organization, $395 a year for the policy. The $300,000 limit per claim ($500,000 total) would probably be enough to fend off a nuisance suit, says Peter Mantius, an independent financial reporter. While on staff at The Atlanta Constitution, Mantius and his newspaper were sued twice — once by someone trying to block publication of a confidential document, and once by a government official alleging defamation (both cases were dismissed). The per-claim limit in the NFPW policy would probably be enough to pay for lawyers to get a frivolous case dismissed, while the reporter’s work to get the story right would be “self-insurance” against the larger damages that are sometimes awarded when libel does occur, Mantius says. (In 2006, the median damage awarded in cases that went to trial was $1.1 million, according to the MLRC report.)
The key to avoiding libel suits is to be prudent but not paranoid, according to Sallie Randolph, a writer, attorney, and one of the authors of Author Law A to Z. “The risks are quite small, if you do your job right,” says Sherman. “Don’t go around saying things you can’t prove. Understand what it takes to prove your point versus just to claim your point.” Or, as Constantine puts it: “Do the best you can do to make sure you have an accurate story. That’s the best insurance you can get.”
*Since we’re talking law, we must make clear: This article does not constitute legal advice, but provides tips to get you started. Libel and defamation are big topics, so take the time to educate yourself in depth. If you have concerns stemming from anything you’re working on, consult a lawyer.
E.B. Boyd is a freelance writer based in San Francisco.
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