Libel, Ethics, Plagiarism

Paul McGrath(Class Session 2)

Two types of defamation: Libel, slander

Libel is a false statement printed or broadcast about a person that tends to bring that person into public hatred, contempt or ridicule (defamation).

Slander refers to spoken words of limited reach (not broadcast).

Defamation in and of itself is not illegal. Saying Joe Blow is accused of a crime or that Craig Biggio “stunk” yesterday after going 0-for-4 and making two errors is defamatory. But neither Joe nor Craig has a legal foot to stand on in court. Of course, anyone can sue. They just may not win.

The 3 main elements of libel(other than falsity)

Defamation IdentificationPublication

DON’T BE A DIP

Defamation Presenting someone in a bad light. In the 9th century, in some enlightened venues, the penalty for defamation was the loss of one’s tongue.

Identification Doesn’t always have to be by name. Referring to students taking COMM 3231 on Monday or Wednesday mornings at UHCL would be considered identification.

PublicationNew technology has broadened the definition of publication. A fax is a publication, but a federal court ruled in 2003 that Web site editors, bloggers and email editors can’t be held liable for libelous statements.

Fault: a fifth element of LIBEL

For a libel suit to succeed, the defendant – YOU perhaps – must be found to have some degree of fault. The burden of proof on fault is entirely on the plaintiff.

Fault varies depending on the status of the plaintiff (who must be a living person or persons):

For public officials and public figures – They have to prove actual malice (also called reckless disregard for the truth)

For private citizens – They only have to prove some degree of negligence.

So how do know if someone if a public official / figure?

Public official? Public figure?

A public official is someone who has or appears to the public to have substantial responsibility for the conduct of government affairs. If they get paid by your tax dollars then they are a public official (includes police, elected officials, candidates etc.)

A public figure is a person with pervasive power or influence, or someone who thrusts themselves into the vortex of a public controversy. Texas courts have ruled that it makes no difference if they seek the spotlight or if the spotlight finds them. But one judge says that defining just who is a public figure “is like trying to nail a jellyfish to a wall.” Who determines when a public figure’s 15 minutes of fame is up?

A private citizen need only prove that there was negligence in the information gathering process. Doesn’t have to show reckless disregard for the truth.

DEFENDING AGAINST LIBEL

What constitutes actual malice or negligenceWhat constitutes actual malice or negligence??

Here’s what it isn’t:Here’s what it isn’t: Texas courts have decided that the Texas courts have decided that the following is following is insufficientinsufficient to be deemed actual malice: to be deemed actual malice:

Failure to perform further investigation or further Failure to perform further investigation or further interviewsinterviews

Inconsistencies in internal policies, procedures etc.Inconsistencies in internal policies, procedures etc. Doing constant rewrites or omission of more favorable Doing constant rewrites or omission of more favorable

interviewsinterviews Evidence that the reporter hates the subjectEvidence that the reporter hates the subject Reporter is under continuous legal reviewReporter is under continuous legal review

DEFENDING AGAINST LIBEL

Where libel most commonly occurs:

1. Shoddy or incomplete reporting. 2. Crime stories -- by definition they contain defamatory

material.

3. Photos -- used incorrectly

4. Quotes -- Tale bearers are just as guilty as tale tellers.

Note that libel can be in ads also. One of the most famous libel cases – Times vs. Sullivan – was sparked by the content of an ad.

DEFENDING AGAINST LIBEL

Truth Truth PrivilegePrivilege Fair comment Fair comment ConsentConsent Reply Reply

You – OK, your lawyers -- might have to use the “Russian river defense” strategy. Just as the Russians in WWII went from river to river to defend against the Nazis, your legal team might have to go from one libel defense to another until you succeed. Your defense choices:

12 ways to stay out of court

1. Treat every story that could damage someone’s reputation like it’s fire.

2. Watch out for the so-called routine story

3. Be fair -- try to get the other side of the story.

4. Be very careful with quotes 5. If you make a mistake, but quick to run a

correction. Demands for a retraction should go to your lawyer. Have a good corrections / retractions policy.

6. Take care with headlines and cutlines (captions)

12 ways to stay out of court7. Be courteous to customers / readers who call or

email.

8. Have libel insurance

9. Try to stay up to date on changes in libel and privacy laws

10. Notes – Keep them for at least a year; that’s the statute of limitations on libel. Always tape police officials/officers on sensitive stories -- they will nearly always lie later.

11. Using the word allegedly won’t save you -- look up “allege” in the AP stylebook

12. Always use proper attribution For more information, please check out the “libel and privacy” section of the For more information, please check out the “libel and privacy” section of the

AP stylebookAP stylebook

Everyday libel: Practical usage

The potential for libelous content to published exists every day. Crime

stories by definition are defamatory and should be handled with care.

Here are some examples from the “Libel and Such” handout that you

should familiarize yourself with:

Murder: The charge implies premeditation and the term often indicates legal closure (a conviction). Sans a conviction, it’s best to use killing, slaying or shooting death etc.

The “for” word: Implies guilt. Don’t write arrested for, charged for, indicted for, going on trial for, etc. Convicted for and sentenced for are OK – there’s a conviction.

Attribution: It’s always best to attribute defamatory material, but be careful: just adding police said isn’t always the solution.

Other legal issues

Check your textbook for a fuller discussion

of these issues:

Invasion of privacy• Intrusion• False light• Public disclosure of private facts • Appropriation of name, photo or words

Other legal issues

Check your textbook for a fuller discussion of these issues:

Shield laws (Texas doesn’t have one; neither do feds) Newsroom searches (see previous reference to notes) Copyright law Taste and decency (censorship) Open meetings, open records

WEB SITES

1. State by state compilation of libel laws

2. How to fight a gag order

3. Court access and access to public records

4. How to use the FOI Act

5. Guidelines for photographers

6. Shield laws

The Reporters Committee on Freedom of the Press (www.rcfp.org) has a very useful Web site that provides a wealth of information on legal issues that apply to journalists, including:

WEB SITES

Poynter online (www.poynter.org) is another good source to help you stay apprised of legal issues.

Magazine resources

American Journalism Review

Columbia Journalism Review

Ethics and Plagiarism

Who love’s ya baby? Not too many it would appear. After 9/11 (note the date of the survey), no wonder firefighters are on top of the list. At least journalists are rated higher than lawyers. Imagine being a journalist AND a lawyer …

Profession Trust rating

TeacherTeacher 85%85%

DoctorsDoctors 77%77%

JudgesJudges 71%71%

Police officersPolice officers 66%66%

JournalistsJournalists 48%48%

LawyersLawyers 40%40%

Auto mechanicsAuto mechanics 39%39%

PoliticiansPoliticians 26%26%

THE TRUST FACTORTHE TRUST FACTORAccording to one poll, this is how Texans rank the

honesty and ethics of various professions:

ETHICS AND PLAGIARISM

What not to do (or two not to emulate)

Wade Roberts

Geraldo Rivera

Who can you trust?

It’s no secret that perceptions of the news media are running at all-time lows. Those perceptions may be hurdles or roadblocks for you.

A recent survey for the Associated Press Managing Editors Association indicates that 9 out of 10 Americans think reporters use unethical or illegal means to obtain stories.

A report by the Pew Research Center, also cited in the textbook, indicates that 69 percent of news professionals say the distinction between reporting and commentary has seriously eroded and two-thirds say attempts to boost readership or viewership have pushed the industry too far in the direction of “infotainment.”

ETHICS GAP

Contributing factors to the ethics gap:Contributing factors to the ethics gap:

The personal biases of the audience The personal biases of the audience (“Why are you picking on my guy?”)(“Why are you picking on my guy?”)

Lack of understanding of journalistic rules and goals Lack of understanding of journalistic rules and goals (“Why give both sides?”)(“Why give both sides?”)

Rise of “infotainment” has clouded news and soured public Rise of “infotainment” has clouded news and soured public perceptions of the news media perceptions of the news media (“Will Anna Nicole / Paris / Britney / Lindsay please (“Will Anna Nicole / Paris / Britney / Lindsay please go away now?”)go away now?”)

Ivory tower attitudes by journalists. Ivory tower attitudes by journalists. (“Our way of looking at things must be the right (“Our way of looking at things must be the right way.”)way.”)

Lack of news councils. No oversight body for journalists Lack of news councils. No oversight body for journalists except in Minnesota and Washington stateexcept in Minnesota and Washington state

Sloppiness. Not doing your job. Realize that people will lie Sloppiness. Not doing your job. Realize that people will lie to you or spin the facts.to you or spin the facts.

CREDIBILITY: A major “C” wordEthics and a strong sense of values form the

cornerstone of credibility.

Without credibility, few journalistic goals can be achieved.

The true power of the media (including advertising and PR)

lies in the ability to influence society through truth-telling.

If the public can’t trust our product (information) we won’t

be very successful.

In journalism, taking shortcuts is the path to danger.

Guiding principles

1. 1. Seek the truth and report it as fully as possibleSeek the truth and report it as fully as possible (afflict (afflict

the comfortable and comfort the afflicted; give voice to the comfortable and comfort the afflicted; give voice to

the voiceless and hold the powerful accountable)the voiceless and hold the powerful accountable)

2. 2. Act independentlyAct independently

3. 3. Minimize harmMinimize harm (to yourself, the medium your represent (to yourself, the medium your represent

and to those directly and indirectly affected by the and to those directly and indirectly affected by the

story)story)

Ethical decision-making

Many stories will require you to make a variety of commonplace ethical decisions: the use of juvenile names, the use of a rape victim’s name, use of unnamed sources, whether to trust data in a report or survey, use of graphic photos. You need to create an ethical decision-making toolbox that is open-minded, fair and consistent.

Creating choices. How ethical decisions are made (handout):

Gut reaction -- Listen to your gut but don’t always trust it Rule obedience -- After years of cajoling, the Chronicle finally has a

written ethics policy. Having rules helps with consistency, but beware of painting yourself into a corner with rules

Reflection and reasoning -- Widens the circle of discussion in order to create alternatives and options. Be careful about allowing one individual to provide a universal opinion. For instance, there is no universal black opinion or universal women’s opinion about most issues.

Ethical decision-making: The process

You have to do front-end thinking

Take note of what newsroom rules apply. Invite collaboration. Collaboration thrives in an environment where

input is not only allowed, but valued equally. Consider the consequences of any course of action OR inaction.

What will the possible results or counteractions be? Determine who the stakeholders are. Who will be most affected by

your decision? The stakeholders could include the journalist, the subject, relatives / friends of the subject or the news organization itself.

Decide what principles, both as a human and as a journalist, need to be applied.

Try to reach a consensus or present alternatives that allow you to accomplish your journalistic goals while minimizing harm.

See the list of questions on Page 4 of the handout.

Seven deadly ethical sins

Deception: misrepresenting yourself to get information Conflict of interest: accepting gifts from sources Bias: slanting a story by commission or omission Fabrication: manufacturing quotes or sources Theft: taking info without permission (United Foods) Burning a source: betraying a confidence Plagiarism: passing off someone else’s work as your

own

Online ethics

Handout – Do the same rules apply?

The first paragraph of the handout asks some very interesting questions. The Web offers a degree of immediacy to the print journalist – but does accuracy often suffer? Or does online journalism need a different set of standards from MSM? What kind of standards do we apply to the growing wave of “citizen journalist”? Should you explain your standards in a “public” place?

Note the sections on blogging and e-mail interviews. We will be talking more about these subjects in subsequent weeks; the latter first. Is an e-mail interview more trustworthy than a face-to-face interview? Do you need to label such an interview as being done by e-mail?

PLAGIARISMPresenting someone else’s words or thoughts without attributing the source is plagiarism. Taking someone

else’s work (someone else’s sweat equity) and making it your

own is also plagiarism.

It’s intellectual theft and perhaps the biggest sin in the communications profession because it is nearly always committed with intent.

It’s also a sign of laziness, not a good trait to have.

Permission is no excuse; we pay millions of dollars to use AP

stories but that doesn’t mean I can change a few words and

slap my byline on an AP story.

PLAGIARISMHow to avoid plagiarism1. When directly quoting, paraphrasing or

summarizing the words of sources or source material, always attribute the source. When the information comes from a person, it’s good to indicate how it was obtained: face to face, phone, email etc. Helps reader weigh veracity.

2. Careful note-taking -- indicate direct quotes, time and place of interview. Paraphrasing is often more useful

3. Give yourself time -- Saying “I was up against deadline” won’t save your job.

PLAGIARISM: When credit is unnecessary

Note the gray area regarding items of “common

knowledge.” Something is probably common knowledge,

and thus no reference is needed, if:

1. It is documented in five other sources (the Astros score given in 5 mediums)

2. Is information readers should already know (who the president is)

3. Is information readily found in a general reference work (who the secretary of Labor is).

Plagiarism: A checklist Does this wording sound familiar? Do I know where it came from? Have I arranged my notes so attributed material remains

separate from my own material? Can I document the source of my information,

description, or observation? Have I asked my editor to alert me to anything she, or

he, thinks reads like something else she, or he, has read?

Am I giving credit, or some indication, as to where this material came from when appropriate?

Have I double-checked the source of work?

Source: “Great Journalists Credit Others" Poynter Online handout

Questions?

Extra credit assignment

Worth 10 points on a story grade or 5 points on either APon the news quiz grade. You can work in a group if you wish.

The “Local Statesman”: Read over the information in the handout. Write a

paragraph to a page on what you or your staff should do. Are there any libel concerns? Why or why not? What are your ethical concerns? What does your gut

say? What newsroom rules apply? How can you give yourself journalistic choices?

Also for next class

Prepare for your next current events quiz Read the assigned chapters Review some obits or paid mortuary

items AP exercise 1 will be due. Think about who you want to interview