By David L. Brown, President
The Rio Grande chapter’s first event of the year took place January 26, thanks to the efforts of board member Dan Vukelich who did yeoman’s duty in planning and organizing the “Media Law Seminar” featuring attorneys Jim Dines and Gregory Williams. The noon-hour event took place on the campus of UNM and drew about 25 participants to hear a 90-minute presentation on key aspects of the law as it applies to the media.
Jim Dines, at right, and Gregory Williams teamed up to inform journalists about defamation in the evolving media world.
Dines and Williams, both with the Albuquerque law firm of Dines & Gross, PC, are leading specialists in media law. Dines has more than 38 years of experience in civil litigation and is one of the state’s leading authorities on media law. Williams has represented media entities around New Mexico, advising on such issues as defamation, public records, response to subpoenas and open meetings. He is a board member of the New Mexico Foundation for Open Government (“FOG”), which in 2008 honored him with its William S. Dixon First Amendment Freedom Award.
The seminar focused on defamation, an issue that is gaining importance in an era of news that flits and “twitters” 24/7. “Defamation” is the new term for libel and slander, but is held to the same standards. Defamation is defined as wrongful injury to a person’s reputation. Dines pointed out that the same principles of libel law apply even in the emerging internet news models and blogs, stating that journalists “are the last defense of freedom of the press and speech.”
Issues include truth, republication, and fairness. To be safe from potential litigation, published accounts must be true and newsworthy. There is no protection under the law for republication; in other words, letters to the editor, op ed commentary, and “news” picked up from other sources can also constitute libel through the act of republication. However, pure statements of opinion cannot give rise to defamation, Dines pointed out, but warned that readers don’t always make the distinction.
The two attorneys illustrated the subject by role playing a courtroom scene in which Dines portrayed the part of an editor whose newspaper had been sued for libel and Williams took the role of the attorney for the plaintiff. The little play demonstrated the difficult position in which journalists may find themselves when libel charges are brought. The fictionalized case involved an account of the personal life of a female TV anchor published in a “gossip column.” The story was sourced from a blog post by a man who turned out to have been a rejected suitor of the victim and who was under a court restraining order at the time. The statements were not true and the false information was reported by the paper without asking the subject for her side of the story or checking the veracity of the blogger.
Objective and thorough news reporting are keys to avoiding trouble, Dines explained. Reporters should learn to “stay out of the story,” he advised, noting that too many times supposedly “hard news” includes the opinions of the reporter. “This is one of the most common errors I’ve seen with journalists,” he said.
Although the question of whether bloggers are journalists has not been decided by the law, the act of libel only requires “publication,” a broad term that includes one person saying something to another. Defamation can come from a “Tweet,” a Listserve comment, or even a verbal exchange, and is not limited to journalists. “Technology is ahead of the law,” Dines pointed out, “but the general rule is that bloggers are fair game” for libel actions. In fact, most defamation suits today are brought against statements published on the internet, rather than by traditional newspapers, magazines and electronic media.
Dines and Williams made several suggestions on ways to avoid getting into trouble:
• Always get the other side of the story. If you are reporting the facts or opinions of one party, it pays to find out what the other side has to say. Often it will turn out that the story is not quite what it appeared to be.
• Deadlines are “always going to get you into trouble,” so make every effort to reach the subject. It’s better to delay publication than to rush into print or onto the air or internet with unsubstantiated claims. The rush to publication is a strong temptation, but leads to a slippery slope when fact checking is not done.
• Every part of a news story should be backed up with documentation such as notes, recordings, emails and public records. Every statement should be exact and documented at all times.
• Privacy torts can create defamation, for example through the concept of “false light,” in which true facts can be twisted to paint a false picture of someone. False light must be “highly offensive” to be actionable. Intrusion into private affairs is also a subject to beware of. In this case, as Dines said, “it’s not what you publish but how you got it.” For example, if a photographer trespasses onto private property to make a picture, he may be liable for violating the expectation of privacy by the subject. Also in this category is the issue of publication of private facts, for example to report that someone suffers from a medical condition. In some instances that might be defensible as being in the public interest, as for example if a school teacher has a contagious disease and continues to appear in the classroom.
• The distinction between public versus private figures is another subject for consideration. The law treats public figures very differently than ordinary citizens, and there is a higher burden of proof for public figures to win libel charges. The public figure must prove “actual malice” and the defendant must have known the report was false and acted with disregard. A public figure is loosely defined as one who has ready access to the media, and the distinction applies only to plaintiffs.
Dines noted that reporters and editors who have gone through the experience of being brought into court on defamation charges are generally much changed by the experience, becoming more careful and wary of potentially defaming a potential plaintiff in a lawsuit.
