The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records.
The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows you to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.
Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:
- Your source is an official public document or statement by a public official on a matter of public concern;
- You properly attribute the information to that source; and
- You fairly and accurately portray the information from the document or statement.
Sources Covered By the Fair Report Privilege
While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered.
Examples where the fair report privilege would probably apply include:
- Statements made by a judge in a trial
- A speech made by a city council member during a council meeting
- Testimony during a trial
- Facts recorded in a final police report
- Analysis reported in an Environmental Protection Agency survey
The privilege would probably not apply to:
- Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
- Gossip overheard on the courthouse steps
- Offhand remarks made by a government official in a private setting
- Statements made in a draft government report
Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.
Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.
Ensuring That Your Use of Sources is "Fair and Accurate"
Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony you relied on is later convicted of perjury, the privilege still applies if you accurately reported and attributed the testimony he provided in the first place. It would apply even if you had knowledge that the witness was lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.
Generally, courts will follow rules of accuracy that echo the "gist" and "sting" rule developed to test for "substantial truth." See the section on Substantial Truth for more information.
But what is critical is that you accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when you are "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege.
In general, courts will look at whether you acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one-sided.
Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.