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6 facts every watchdog should know about libel and slander

Editor’s note: this information is to be educational, and does not serve as legal advice.

As Americans, we are protected by the First Amendment, regardless of job title. But as journalists and watchdogs, we need to also understand how our speech is held accountable under the law.

Both libel, a written false statement, and slander, a spoken false statement, fall under the umbrella of “defamation”. In order for a statement to be defamatory, a statement must:

  • Communicate a false statement of fact, not opinion
  • Be about an identifiable living person or company
  • Be made with required degree or fault (negligence or “actual malice”)
  • Cause damage to the person or harm the person or company

Here are six facts every truth-teller should know:

1. Your implications matter

Many defamation claims are based on the implications made in a story, and those claims often are the trickiest to litigate. If you don’t have sufficient supporting evidence to say something directly, you shouldn’t imply it either.

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As a tip, be especially careful for possibly defamatory implications when writing headlines, teasers, and photo captions.  Also beware of juxtapositions:  for example, writing about Company X in the same paragraph in which you discuss Company Y’s fraud may lead to a claim that you’ve implied that Company X engaged in the same fraudulent conduct.

2. To prove defamation, the readers must be able to identify the plaintiff

This doesn’t always mean that you have to name them specifically. If your description of the person or company makes its identity apparent – even to a subset of your readers – that person or company may be able to sue.

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3. Fact vs. Opinion

Simply prefacing a statement with “I think” or “I believe” or “in my opinion” does not necessarily protect you from a libel claim.  The First Amendment generally protects: rhetorical hyperbole, highly subjective expressions, and epithets.

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As a note, be careful when using adjectives like “incompetent,” “immoral,” or “unethical” when referring to an individual or company.  If you do, provide specific factual examples that support your opinion.

4. No exceptions to the rule

Bloggers and citizen journalists are held to the exact same defamation standards as reporters who are being paid to report regularly.

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No. Exceptions.

5. Who can sue?

Corporations, associations, and unions may sue, but large groups cannot sue for statements about a member. Executives cannot sue for statements about corporations and vice versa. Dead people may not sue.

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6. Public vs. Private Individuals

Public figures must show actual malice, which requires actual awareness of falsity or reckless disregard for the truth, while private figures must show only negligence.

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Ultimately, the TRUTH is the complete defense against a defamation claim, though often a fact-intensive, expensive, and time-consuming defense in court. Strive to be accurate and keep relevant documents and notes organized in case you need to reference or provide them in court.  If your reporting is based on judicial or other government records, cite specifically to those records (and even link to them, if possible).  Doing so gives you significant legal protections.

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All images from Shutterstock

Jackie Moreau

Jackie Moreau is the Managing Editor of Watchdog Wire. You can find her on Twitter as @Jackie_Moreau.

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