Note to Business Week: Bloggers Aren't Immune from Libel Law

In an otherwise constructive look at Apple's attack on freedom of the press, Business Week Online says:

However, blogs have also fast gained a reputation for inaccuracy that threatens to erode their writers' claim to the title of journalist. Just as these sites have been touted as the new pillars of American democracy for their ability to ensure that any literate person can publish, they have also proven to be swirling rumor mills. In traditional media, the same legal rights that allow a journalist to protect sources also hold such writers accountable to report the truth. If journalists stray from what's true, they can be charged with libel.

Well, sure, they can be sued for libel. But this piece suggests that pro journalists have more incentive than bloggers to tell the truth, and thus sets up the reader to think that the professionals therefore deserve more protection.

False. In fact, bloggers are hardly immune from libel laws. They, too, can be sued, as Yale law professor Jack Balkin noted a long time ago. (See also this story in Online Journalism Review.)

Professionals get sued more often, no doubt, but that's almost certainly because they work for organizations with deep pockets -- and because the damage they can cause when they get things wrong is greater.

Business Week's Jessi Hempel clarifies nicely.

Comments

[Jim M]

And of course Business Week's own story, along with hundreds of other newspaper and magazine stories written by reporters and vetted by editors, show that not having the facts yet publishing anyway is not a blogger-only syndrome.

One could easily take the side in a debate that bloggers -- any widely read bloggers at least -- are more likely to be corrected in either their comments or another widely read blog -- than newspapers and magazines today. The printed press has taken to stonewalling and reacting to attempted corrections with defensive bluster.

[Scote]

Many blogs have a much more transparent system for corrections than newspapers and magazines. While the press hides its corrections, in any, in small print that is far less prominent than the original story, Bloggers, often strike through the original posting and make the correction right next to it.

I'd say that bloggers are far more vulnerable to libel suits since they don't have deep pockets or a legal department to defend them.

[Jeremy A. Verdusco]

As a journalist and blogger, I exercise pointed caution when publishing to the Web. (I work a copy editor night job, and blog in my spare time.) When I first began my Web column, I surfed around lots of sites, looking for clearly stated corrections policies. I only found three or four. From those, I cribbed together the following guidelines for dealing with the inevitable error.

Anyone can rant or flame on the Web. It's not journalism unless it's researched, correct and fair.

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Publishing Policies

I will never publish something knowingly false, regardless of the author. However, journalists, like most people, are human. Corrections follow these guidelines:

Minor errors may be corrected and reposted seamlessly and without notification. For example, if a post has grammar or minor spelling errors, I reserve the right to correct them without informing readers.

A misspelling to a proper noun, such as a person's name, is a graver offense. Corrections of this nature get a permanent note within the updated text. For example: [Corrected 13 March, 2004 to 'Smith' from 'Smyth']

Major factual errors include flat-out mischaracterizations and their ilk. For example, suppose I or one of the guest authors misquotes a source. In such a case, the post will be corrected and reposted with the words CORRECTED, SEE ORIGINAL BELOW at the top of it. The reason for the correction will precede the original text.
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[Mike D.]

"But this piece suggests that pro journalists have more incentive than bloggers to tell the truth"

I think this is somewhat true depending on how you phrase it. I would say that a greater percentage of journalists have a greater incentive to tell the truth than bloggers. Meaning, something like 99% of journalists are really intensely concerned with reporting the truth and will take significant measures to see that that is the case. Whereas, with bloggers, you've just got so many amateurs out there with no reputation and no training that a good percentage of them don't do any fact-checking or any of the other standard things you're trained to do as a journalist.

This thinking, however, like all generalizations, is dangerous... as you point out. The top bloggers and the top journalists both have an equal incentive to tell the truth and that's why both should get an equal amount of respect. If the journalist doesn't tell the truth, they can be fired. If the blogger doesn't tell the truth, their reputation can be spoiled and they will lose traffic. The only problem is the enormous "bottom pool" of bloggers out there whose standards and fear of messing up isn't so high.

[Anna]

Good idea, Jeremy. Unfortunately, the initially-sloppier and more retroactively conscientious we are, the more unreadable the end result becomes.
It would be nice if blogging tools could provide two versions of a post - the clean one, and the one that shows all corrections.

[Jessica]

Thinking about this idea of whether bloggers are journalists led me to think about what types of actions and responsibilities make up both jobs. Specifically, where do they base their content from?

Some independent bloggers post about their daily routine, a bad experience at a store, a new restaurant they want to, etc. Others, like Business Week's Tech Beat, seem to base their posts on timely items in the news. Is the decision on what a blogger is going to post about simply an arbitrary process? Like a journalist, are bloggers open to ideas on what to post about or do they accept solicitation from PR professionals?

It seems like the role of the blogger is evolving into a more definable fixture in the media world and I'm curious how others view this idea.

[Brad]

"However, blogs have also fast gained a reputation for inaccuracy that threatens to erode their writers' claim to the title of journalist." -- reminds me of the old saying about the pot calling the kettle black.

[Ran Talbott]

The use of the phrase "to tell the truth" is unfortunate, since it pushes the debate toward moral issues, and away from the distinctions that matter.

The fact is that "pro journalists" _do_ have a _much_ greater incentive, not "to tell the truth", but "to follow practices that make it likely that what they publish is not factually wrong". It may or may not be "The Truth": it can easily omit, by accident or design, facts that would lead the reader/viewer to a more-accurate understanding of the subject. It may turn out to be wrong, due to human error or deceitful sources. But the pros work within a system designed to minimize those occurrences, and libel suits are only a small part of their incentive to stay within its limits.

Just look at what happened as a result of "Rathergate". The "pros" who failed to follow the standard practices for verifying supporting documents lost their jobs, despite the fact that the story, itself, was true. How many of the soi-disant "citizen journalists" who posted nonsense that they siumply pulled out of their asses to freerepublic.com, the Daily Kos, and other blogs even lost their posting privileges? Much less had to move halfway across the country and restart their careers.

Yes, there are _some_ serious bloggers who produce better quality "journalism" than many hacks who get paid for it. But, taken as groups, the difference in accountability and enforcemnet of standards between the amateurs and the pros is so great that they can barely be put on the same scale.

Until we get to the point where screwing up a story on a blog carries penalties comparable to those imposed on the pros, bloggers shouldn't be entitled to the privileges granted those who submit to the standards and constrains imposed on the pros.

Ran

[Jeremy Pepper]

Of course bloggers will be sued for libel. I conducted a long interview with the NYT General Counsel for my blog - and emailed it to you, Dan - and found it interesting that beyond the PR blogosphere, no one seemed to care enough to link to it.

A few PR blogs are also doing what you may call 'citizen journalism' ... we just call it research. And we don't all necessarily engage in the hyper-active hyperlink of the day kinds of posts, that say nothing but seem to have generated a huge following. If I wanted to have a PR blog on blogs, I could post tons of crap every day, and say nothing.

Blogging, though, should be about more. While I won't call myself a citizen journalist - and I probably have as much a right to claim that mantle than other PR bloggers - I look at my blog as a place to provide information and create dialogues.

Blogs will be sued for libel, and it will get ugly. And, it will be a nail into the coffin of blogging, unless the 'citizen journalists' can put into place copy editing practices that save the format.

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