Neutral Report Privilege

Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.

Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, 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:

  1. A responsible, prominent organization or individual;

  2. Makes a serious charge on a matter of public interest;

  3. Against another public figure or organization; and

  4. The charge is accurately and disinterestedly reported.

Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).

The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:

What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

Edwards, 556 F.2d at 120.  The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.

Examples of the Neutral Reportage Privilege

Examples of instances where courts have applied the neutral reportage privilege include:

  • Newspaper report that a state auditor accused a town trustee of faking a snow emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996).
  • A newspaper report that a political campaign brochure accused the county's Italian-American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988).
  • A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).

Differing State Approaches to the Neutral Reportage Privilege

Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways:

  • Private figure plaintiffs: Edwards v. National Audubon involved an instance where the person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved.

  • Trustworthy and prominent sources: Few sources are more trustworthy and prominent than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story.

  • Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Consult your individual state defamation section, but also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.


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