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Using privileged information is a way to avoid libel, IPA’s Craven says

November 15, 2009

Don Craven, interim director, Illinois Press Association

Don Craven, interim director of the Illinois Press Association, says reporters can avoid libel lawsuits by using public records, watching how they dispose of their notes and by not arguing with people who call in to complain about an article.

“You don’t want people hot about stories talking with a reporter because he is going to tell them why he is right,” Craven said. “What he should do is put him on hold and have him talk with someone else. I don’t care who it is. If you can solve someone’s problem with a story, they probably won’t sue.”

Craven’s comments were part of a “Libel Law Update” session he led Thursday, Nov. 12, as part of a one-day seminar on “Essentials of Credibility & Media Law” held at the Illinois Press Association headquarters in Springfield, Ill. The seminar was co-sponsored by the Mid-America Press Institute and the Illinois Press Foundation.

Craven, an attorney who specializes in media law, pointed out that five things must be present for a libel lawsuit to advance in the courts. There has to be a false statement of fact, it has to identify another person, it has to be published without a privilege, has to include fault and has to damage someone’s reputation, he said.

The most important one of these is to make sure reporters base stories on privileged information, Craven said.

“News reporters have a privilege,” he said. “You can’t be sued if you are working from your privilege. We are the link between government and the public. We have a privilege to fairly and accurately report on those proceedings.”

Craven said reporters should use police records and official government documents, and should gather information from court hearings and governmental meetings as much as possible. He told reporters and editors to get a copy of the public records they are using.

“The importance of public records is crucial in libel and privacy cases.”

When reporters become aware of a problem with a story, never write a memo about it, Craven said. Don’t talk about it, either, because that too could become discovery in a lawsuit. They may sound like admissions of guilt, he said.

Craven said computers are very useful tools for journalists but they can be very dangerous devices, too.

He said reporters should never play around with slugs on stories. He told the audience about an Oklahoma case in which a newspaper took photos of a fair queen and the queen of a dog show. “Which one do you think was ‘Queen Bitch?’ You can’t do that stuff.”

In writing opinion pieces, if an editor calls someone a liar in an editorial, he or she should say why, Craven said. “If you don’t disclose the set of facts, (the plaintiff) gets to fill in the set of facts. Good journalism requires a set of facts.”

Craven also admonished reporters to be careful with their notes.

If a reporter gets rid of his notes because he is about to get sued or after he has been sued, it will be presumed he did it intentionally and it is an admission of guilt, Craven said. Same thing applies to recordings and the like.

“If you have a policy that you keep your notes for six months and you have some body get rid of their notes after three months, you’re going to be held responsible,” he said. “My suggestion is don’t have a policy. It’s newsroom practices that will get you in trouble.”

In some cases, Craven said, a correction, clarification, retraction can be the cheapest thing an editor does if there is a need for one. “Get a release with it and move on down until you make your next mistake.”

Asked about what to do with blog comments, Craven said: “What do we do? Do we post them? Edit them? There is a section in federal law that says the newspaper does not have liability for the content of those posts.”

He suggested that editors place a disclosure on their Web pages, stating who is liable for the posts.

“The individual has liability for what they post,” he said. “You don’t. If you change it, if you edit it . . . it’s yours. Don’t change it.”

He said editors can take the comments down. That is not considered editing. However, he said if editors publish the comments in their print product, it becomes the newspaper’s work and the newspaper can be held liable for the comments.

A new troublesome area about blog comments, is that judges have been ordering newspapers to reveal the identity of posters. He advised editors to wait for a subpoena before they give up the information and he also said newspapers should say on their Web pages that the records are not confidential and will be turned over if they are served with a subpoena for such information.

Generally, all a newspaper can reveal is the person’s IP address. To get more information, the person wanting the identity will then have to go after the Internet provider, he said.

Craven has written an Internet policy template on the IPA Web site and editors are welcome to use it.

Craven also said a new Illinois statute, the Citizens Participation Act, extends absolute immunity to statements made to promote or further governmental activity. “So if you write an edit or stories meant to shape or promote governmental activity, they are immune from liability. If you keep that in mind, you can build in added protection.”

“It’s a wonderful protection,” he said.

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