Friday, April 1, 2011
The End of Libel as We Knew It
It occurred to me the other day that it has been a very long time since I’ve seen a news article about a libel suit filed in the United States. Could it be that libel, like privacy, is one of those relics of the twentieth century that has become irrelevant?
The internet has become the greatest destroyer of privacy in history. Google Earth can put your back yard, with its weeds and rusting vehicles, in front of billions. And if Facebook is any indication, many of us have become eager and willing assassins of our own privacy.
(Along those lines, a corporate executive I know says she routinely checks the Facebook pages of job applicants and is both astonished and appalled by what she sees there. Suffice it to say, half the people who apply for a job with her company effectively Facebook themselves out of the running with their spring break photos and drunkalogues.)
Still, you’d think libel would survive because it’s an injury inflicted by someone else’s publication or broadcast of a defamatory falsehood. In my newspaper days, there were hard and fast legal rules covering libel, and we all knew them well.
In California, if you published a story and the object of it considered himself libeled, he had several days to serve the publication with a demand for correction, clearly stating the error.
If the publication corrected the error in a timely fashion, the aggrieved party could sue only for actual damages. If the paper falsely reported that someone had been arrested for drunk driving, causing him to lose his job, the paper was on the hook for his lost wages and legal fees, but not for any punitive damages if a prompt correction was made. The correction was considered evidence per se of absence of malice.
An interesting sidelight: If the error was due to faulty information on an official document, such as a booking sheet at the jail, the publication was off the hook altogether, as the official document was considered privileged, like sworn testimony in court, and could be reported without regard to its actual truth. A few years before I got there, the paper I worked for made case law on that point.
Libel suits worried news organizations for the same reason any lawsuit does. Anybody can file one, and there’s no telling what a jury will do if it gets that far. My paper was once sued by a developer for $121 million for reporting on a community group’s criticism of the development. A judge dismissed the lawsuit after several months, but they were anxious months.
The threat of such suits, however remote, did keep us on our toes. Any time there was a controversial story affecting someone’s reputation, the editor insisted on doing the final edit, fine-tuning it for precision, accuracy and nuance. If nothing else, the possibility of a libel suit taught reporters one of the most important lessons in journalism: You are writing about real people with real feelings and real reputations, and you should never forget that.
Maybe there’s so much bad stuff out there about so many people that it just doesn’t matter any more. Maybe the fragmentation of the media has become so complete that no one thinks it matters what a newspaper or TV network says. If you think you’ve been libeled by Fox News, you’d have to figure it was seen by only a couple of million people, most of whom probably believe Barack Obama has no valid birth certificate. Sue the bastards? What’s the point?