While you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize your risk of being on the receiving end of a defamation or false light lawsuit. Some suggestions include:
- Follow good journalistic practices: While you can't reduce your legal risks entirely, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be found liable for defamation. See the section on Journalism Skills and Principles for helpful suggestions.
- Strive to be as accurate as possible: Truth is a complete defense in defamation and false light cases. If you can prove that what you wrote, posted, or said is true, then you have negated the falsity requirement at the heart of these claims. That means that when it comes to your publishing activities, accuracy isn’t only a good journalistic practice, it also puts you on safer legal ground.
- Use reliable sources: The better your sources, the better your chances in court. There actually is a privilege for "fair reports" of accurately quoted official records and proceedings. It’s important to report the information accurately, and to properly attribute the information. Be especially careful when using confidential sources. If you rely solely on confidential sources, you may be in a compromised position should you be sued for defamation. It will be very difficult for you to defend yourself by proving your statement is true. Even worse, if you uphold your commitment and refuse to identify your source – and there are important legal and ethical reasons to do so – the result at trial could be a presumption that the source did not exist. See the section on Promising Confidentiality to Your Sources in this guide for more information.
- Seek comment from the subjects of your statements, when appropriate: If your story or blog post includes an assertion of fact that might be harmful to someone’s reputation, double check your facts and give your subject an opportunity to respond. You don’t necessarily need to include the response in your post, but it can help if you can show you reached out before publication, gave the subject a chance to respond, and considered what he or she had to say. You might find out that the subject has a perfectly reasonable explanation, you received misinformation from other sources, or the subject has confirmed the accuracy of your research.
- Document your research: It will often be beneficial to you to keep a log of your fact-checking efforts. Save your research and other documentary materials. Don't assume that just because something is available online today, it will always be available. In the case of a lawsuit, you will likely need to produce your notes, drafts, and copies of source materials. Accordingly, if you create these materials you should make sure they provide a complete and accurate picture of the work you did in researching and fact-checking your statements.
- Keep an eye out for "Red Flag" statements: Some statements are more likely to be problematic than others. Statements that accuse someone of committing a crime or being arrested; acting immorally; acting with professional incompetence; committing malpractice; exhibiting evidence of substance abuse; or engaging in improper sexual activities are especially problematic.
- Be cautious when publishing negative information about businesses: Many defamation lawsuits are brought by businesses who often have lawyers at their disposal and economic interests tied to their reputations. You have every right to criticize companies and their products and services provided you do so accurately and fairly. However, you can run into problems not only under defamation law, but also under laws designed to enforce fair trade and fair competition, if you falsely disparage a business entity, or its product or services, particularly when your subject is a competitor.
- Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to defamation and false light claims. Consent can often be gained expressly, by someone specifically telling you that you can publish the information about them, but can also be implied if a person fails to object to a fact-checking draft or read back you send them prior to publication. Where possible, attempt to get express consent.
- Be willing to correct or retract your mistakes: If someone asks you to publish a correction or retraction, investigate the request carefully. If you find you got something wrong, correct any inaccuracies and issue a correction or retraction. Be prompt and give your correction the same prominent position that you gave the inaccurate information you previously posted. See the section on Correcting or Retracting Your Work After Publication for guidance.
- Ensure that your work is covered by all applicable privileges: A number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. These defenses, which are often called privileges, may allow you to get out of a case at a very early stage. For example, if the statement at issue is substantially true, a defamation claim cannot succeed. But truth is not the only defense that may be available. You are entitled to state your opinions and if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. We've included some additional tips below that can help you get the most out of any applicable privileges.
Ensuring that the Opinion and Fair Comment Privileges Apply to Your Statements
- When offering your opinion about someone or something, make sure the context and the language you use conveys that you are stating your opinion. Words such as "in my opinion," "I believe," and "we think," are not always enough.
- Avoid using terms that imply underlying, verifiable facts.
- If you are stating an opinion that is based, at least in part, on verifiable facts be sure to state the facts you are relying on and be careful to ensure that your opinion is reasonable in light of those facts. If possible link to a document or source containing those facts in order to make clear what the underlying facts are that you are basing your opinion on.
Ensuring that the Fair Report Privilege Applies to Your Statements
- If you are publishing information about the activities or statements of government officials or institutions, you should seek to rely as much as possible on official documentary sources and statements made by government officials.
- Provide clear and accurate attribution to all documentary sources and statements by government officials, and keep copies if possible.
- Stick to the facts. While you may report the content of an official document or the proceedings of a government meeting, your editorial additions (for example, musings as to the motives of those involved) that tend to give a defamatory spin to the report are not privileged.
- Be fair and evenhanded in your use of these sources. Be sure to read the whole source document and characterize its statements accurately in your reporting. Beware of selective quoting; for example, if you report only negative testimony against the defendant in a lawsuit, while neglecting to report testimony that tends to vindicate the defendant, your coverage could fail the "fairness" requirement of this defense.
Ensuring that the Neutral Report Privilege Applies to Your Statements
- Attribute your quotes. Make sure it is obvious that you are reporting on an accusation made by someone else.
- If your source is a public figure, clearly indicate his title or role when quoting him, so as to emphasize that you are relying on a public figure speaking about a person or subject about which he has some stature or qualification.
- Be particularly careful when abridging or paraphrasing quotes so as to not change them in such as way as to create a defamatory meaning that was not there previously. Also, if possible, verify your quote with the source.
- Be fair in your coverage of the accusation or controversy. The neutral report privilege is not available if you provide a biased view of the situation.
- Keep in mind that the privilege is intended to protect the publication of matters related legitimately to the public good. If you're reporting something that is of vital public interest, it will more likely be privileged than if you are reporting something that is of only marginal import, such as personal gossip concerning a celebrity.