One of the hardest things for people to understand about libel law is that publishers are legally as liable as writers are. Even if the publishing company clearly states, in a disclaimer at the front of a memoir or a newspaper editorial, that someone else is the author of the statement and the publisher is not endorsing the statement as true, the publisher has an obligation to print only the truth.
Take the case of a politician who issues a press release accusing her opponent of taking illegal bribes. A newspaper reporter receives the press release and consequently writes a story reporting the politician’s allegation about her opponent. The newspaper publishes the reporter’s story. (It is news after all.) If the allegation is false, the politician and reporter as well as the newspaper may all be sued successfully for libel, depending on the circumstances. For this reason, a publisher’s responsibility for the statements that appear in its newspapers, magazines and books or on its Web pages is exactly the same as the author’s. This is why some publishers hire fact-checkers.
Employing fact-checkers to review information before it is published is one way for publishers to show that they’ve taken precautions against acting negligently. Publishers may not be able to avoid being sued for libel, but they can insulate themselves from a successful lawsuit for libel—defined as a lawsuit resulting in a big money judgment against the publisher—by taking the reasonable precautions which will enable them to prove in court that even if what they printed was false and defamatory, it certainly was not published with “actual malice.”
Publishers can also avoid a lawsuit by employing common sense and carefully reading everything submitted for publication. Some things just do not make sense. Some things stretch our credulity. Some things are internally inconsistent or inconsistent with other facts that we know to be true. When a nonsensical, incredible or inconsistent piece of writing also defames an identifiable living person, the publisher should ask hard questions of the author and refuse to print the writing until his questions are answered satisfactorily. Otherwise, the publisher may be printing a piece with “actual malice”—that is, with a reason to know that it may not be true. (And a great deal hinges on “actual malice”: In the case of writing about public figures, actual malice is the standard for liability; in the case of private individuals, proof of actual malice allows for the recovery of punitive damages.)
A publisher cannot turn a blind eye to suspicious “facts.” If it is possible to verify whether something is true or not—by checking a public record, for example—a publisher must do so. A publisher may not know that a particular fact is false, but if he could have found out that it was false, he might still be in trouble.
A publisher should follow the same procedures for vetting every article. Failure to follow the established protocol for an article that turns out to be false and defamatory will certainly prove negligence and may also be evidence of “actual malice.” There is, of course, no official journalistic code, but to the extent that there is a set of generally accepted industry standards, publishers should follow them—not least because experts will be called on to testify about their existence in court.
Publishers (and, by extension, authors) must be especially wary of negative statements that are written about a person who is not a public official or figure because the plaintiff’s burden of proof in such cases is less stringent. Writers can be held liable even if all they do is repeat what others have said—even if the “others” are the police or other public officials. If, for example, a detective says a suspect is a rapist and a writer prints that accusation, the suspect must actually be a rapist in order for the writer and publisher to escape liability for repeating the accusation. (Hence, the heavy use of the word alleged in news reports.)
Further complications arise when an author relies on unnamed sources in his article or book. The author swears the source is reliable, but how can the publisher know? Unless the publisher knows the source has proved reliable in the past, he may not be able to protect himself from a libel suit. At the very least, the publisher should know how the source knows what he purports to know and be convinced that the basis for his knowledge seems reasonable. Red flags should go up if the basis of the knowledge is not firsthand but rather double or triple hearsay. In some instances, the publisher may demand to know who the source is and even interrogate the source himself. Even if the publisher does all this, however, he should know that he may not be able to rely on the reliability of the source in court if he is not willing to reveal the source’s identity so that the other side can challenge the source’s reliability.
Finally, a publisher should be willing to retract a false statement if he learns of the falsehood after publication because the printing of a retraction will go a long way toward keeping down the damages awarded in the event the subject of the defamatory piece elects to sue anyway. Presumably, once a retraction is printed, the harm to the subject’s reputation is mitigated.
Ideally, since both publishers and writers can be found guilty of libel, they should work together to ensure that published works treat subjects ethically and stay within the boundaries set by libel law. Fact-checking and other similar precautions may sometimes seem to be time-consuming annoyances, but they protect both writers and publishers—and help ensure that the story is right the first time.