1) What are the elements of a defamation claim, whether it is libel (written) or slander (oral)?
A defamation claim accuses the defendant of communicating a factual inaccuracy about the plaintiff to a third person or to the public at large, potentially damaging the plaintiff’s reputation. The alleged inaccuracy must relate specifically to an individual or organization.
A statement of fact, however damaging to an individual or organization, cannot result in defamation. The onus of proving a statement to be false lies with the plaintiff in the US. In several other countries however, the defendant must establish that the statement under question is accurate.
The factual inaccuracy must be specifically about someone – an individual, group or organization. “Journalists are hacks,” for instance, is a sentence that cannot attract defamation because it is not targeted at any particular individual or organization.
The inaccuracy must hold the potential to damage the plaintiff’s reputation as is perceived by society at large. Hurting the sentiments of the plaintiff is not adequate ground for defamation.
The defendant has to also have published or communicated the inaccurate statement to at least one person other than the plaintiff for a defamation claim to hold. Defamation charges can accuse the defendant of libel, if the inaccurate, unflattering statement is made in writing – in the story or in any other written form – or of slander, if the statement is communicated orally to a third party.
Reporters can attract defamation even before their stories are finally published – if they make false, unflattering statements about someone to a third party.
2) If someone gives you her name and password to access her employer’s website, should you use that information to access the site?
No. Reporters should not use someone else’s electronic identification to gain access to information stored digitally. Pretending to be someone else on the internet is a violation of cyber laws, and can get reporters into trouble.
There is however nothing wrong in accessing any information or data in the online world without pretending to be someone else. Information can be accessed from websites if their security is so weak that no misrepresentation is required for the task. Journalists who cleverly guess web portals where organizations may have uploaded information that they later intend to make public, are also not guilty of any legal violations in accessing those online sites.
3) How much time should you give the subject of an article or video to comment before publication?
The time a reporter gives a source to respond to queries depends on specific situations, but the reporter must never allow the source to effectively dictate when the story is published.
It is usually best not to commit to hold a story for any specific number of days. The news organization may be in a position to access the required information from other sources before the first source responds, and may wish to publish the story which is now complete. Such a scenario leaves the reporter in a position where he ends up having misled the first source about when to expect the publication of the story.
4) What is the rule on reading back quotes to sources? (Something of a trick question)
There are no fixed rules about reading back quotes to sources. Some reporters do read back quotes to sources – while others don’t. If a reporter promises to read back quotes, he or she must do so.
Reporters who want to read back quotes should however do so immediately after the interview rather than later, when the source has a chance to reflect on any unintended consequences of his or her quote and may try and tweak it even though the initial quote was accurate.
Journalists must however never show the entire story to a source prior to publication. This gives other stakeholders represented in the story the impression that the reporter is biased as one source appears to have greater influence over the story as it will finally appear. Sources are also rarely good editors.