“When the media goes to trial, you’re more likely to lose than to win.” That caution from attorney John Ronayne III should get everyone’s attention in newsrooms around the country. Speaking at the Michigan Association of Broadcasters conference a few years back, Ronayne warned that landing in court can be hideously expensive. “The average cost just to get a libel case ready to try was $100,000 ten years ago. That can put a huge dent in any newsroom’s budget.”
Attorney Paul Watler agrees that the risk is high. “Journalists start trials behind 14-0 when they are sued,” Watler told the Texas Association of Broadcasters conference in 2005. He blames a general climate of mistrust and cynicism about the news media that juries share.
NOTE: The information presented here is not intended to be legal advice. Please consult a lawyer if you want professional advice for your particular situation or state.
The number one reason people sue stations, Ronayne says, is the way they were treated when they called the newsroom to complain. His advice? “Don’t say ‘We’re sticking by our story.’ In the nicest possible way, listen to them, kill them with kindness.” But if you screwed up, don’t say you’re sorry, Ronayne says. You can correct a factual error, he says, but he advises against retractions unless you have a written agreement that you won’t be sued.
“I won’t let my clients say, ‘We regret the error,’” says Watler. “But I encourage them to correct it if they’ve made a mistake.” He believes that corrections actually enhance a station’s credibility.
One of the most common lawsuits against a newsroom is for defamation. By definition, it means that what you have said about someone, if true, would deter others from dealing with him or her. For example, to say a person is poor is not defamatory but to call them a thief would be, unless you can definitively prove that it’s true. But Ronayne says that while truth is a journalistic imperative, it’s a “crappy defense.” A good street test for reporters, Ronayne says, is to ask themselves at every step, “Who is going to prove this part of the story?” What your lawyer will want to know is, “Who’s my first witness?”
Imagine that Smith has told you Jones is a pedophile, and you go on the air with it. Even if it’s “common knowledge,” you could get sued. “I can’t call ‘common knowledge’ to the stand,” Ronayne says. And just proving Smith really told you what you reported is not enough to win a case. The law says you have to prove the truth of the underlying charge, so you have to be able to prove that Jones is a pedophile. “You put it on the air, you own it,” Ronayne says.
This kind of problem statement can easily slip onto the air during live shots from crime scenes, which Ronayne calls “frickin’ terrifying.” He sees it all the time. A reporter sticks a microphone in a bystander’s face who proceeds to say something potentially defamatory. Let’s say a child left alone in a house has started a small fire by playing with matches, and someone says, “That doesn’t surprise me, those parents leave the kids alone all the time.” The station can be sued for that, Ronayne says, and you may not even be able to find the person who said it to testify, because you didn’t get a name or contact information.
Another major area of concern is promotions, says Watler. “Promo writers love those red flag words that will get you sued,” he says. “They are not trained journalists, so review what they write.”
Journalists do have some protections against defamation suits. A group that does not involve an identified person cannot sue for defamation. Neither can the government. And the opinion defense protects statements that are non-factual so they can’t be proven true or false. The law also tilts in the newsroom’s direction when it comes to public officials and public figures. Stations would only be liable for defamation if they broadcast information they know to be false or thought was probably false.
Some states, like Michigan, offer an absolute privilege for information from government reports or records, acts of a public body and official proceedings, even if the underlying materials are inaccurate. To make sure you can claim that protection, Ronayne advises journalists to cite the source of the information on the air. But some “defenses” journalists think they have really aren’t defenses at all. If everybody’s reporting the same thing, for instance, you are no less liable. Everybody can be sued.
Stations don’t just face lawsuits based on what they report, they can also be sued for their newsgathering practices. A Supreme Court ruling ended the practice of shooting police raids inside people’s homes, but the law is less clear when it comes to businesses. If you shoot in an area where the public is invited, that can be defensible, Ronayne says, but it’s not without risk. In California, for instance, almost every location is considered private.
State laws differ on whether you can record phone calls for broadcast without consent. But in states that do require consent, Ronayne advises getting permission before you turn on the recorder, and then restating the agreement when you start rolling. You can also get in trouble for using a wireless mic to transmit sound surreptitiously to a different location for recording. Using a visible wireless or recording in a public area is okay, Ronayne says, but if you’re going undercover, the recording device has to be carried by a participant in the conversation.
Stations also have been sued for invasion of privacy when a person could be identified on tape, even after the image was digitized. “Make sure their own mother wouldn’t recognize them,” Ronayne advises. But he does not encourage reporters to get written consent to use video on the air. “In a news setting, it’s a bad path to establish that you need consent to report the news,” he says.