As an investigative editor, when editing a story, I read every sentence hunting for defamatory comments. It’s one of the most important things I do.
A serious defamation case is an existential threat to a media organization and this threat is getting worse by the day as more targets of stories are filing cases and more extremist judges in politicized settings are ruling in favor of plaintiffs.
Defamation in the journalism context is publishing something that is both inaccurate and that harms a person’s reputation.
Whether it’s written defamation (called libel) or broadcast defamation (called slander), if you cannot prove the statement is true and the plaintiff can show it harmed them, you may be liable for damages. Sometimes these damages are small (the maximum award in Bosnia and Herzegovina is less than $10,000) but other times then can go into the hundreds of millions of dollars – enough to bankrupt a company.
In 2016, the media website Gawker, filed for bankruptcy after losing a $140 million lawsuit to the professional wrestler Hulk Hogan. Website Infowars was bankrupted after receiving a $1 billion judgment against them for their claims that the Sandy Hook school shooting was a hoax. Fox News settled with a voting machine company for $787 million after it published stories that voting machines were compromised and while it did not go out of business, the cost was damaging.
When you are an online media house, every time you hit the publish key and put a story up, you may be incurring risk in 195 countries around the world if that website is viewable from inside that country. And that’s a big problem because defamation and privacy laws are very different in each jurisdiction. In some places there are criminal defamation laws meaning you can go to prison for defamation. In others, the laws forbid you from “insulting” people and truth doesn’t play a role. It’s a huge liability and one that is hard to protect against.
But this is sadly not understood by many international media. In a recent conversation with an editor from a European non-profit media organization, the founder and editor assured me that he has only been sued in his home country and he couldn’t understand why someone would ever sue him elsewhere. This is, frankly, wishful thinking and his attitude puts his news organization at serious risk. You can be sued where anyone has legal standing which could be any country on earth. And if you lose that suit, the plaintiff may be able to ask the courts in your country to honor that suit and any money owed.
Hope is not a risk mitigation strategy. You have to be ready worldwide to face defamation and privacy suits.
The greatest risk many investigative journalists face is the United Kingdom. The UK has some of the onerous laws on defamation in the world and journalists regularly lose. In the UK, the burden of proof rests with the journalist to prove their story is accurate or is of substantial public interest. The UK court system also doesn’t rely on the story itself to decide what the journalist said but instead allows the judge to determine what the journalist actually meant.
In America, to an extent you can say “he walks like a duck and quacks like a duck but I am not saying he’s a duck” and avoid a lawsuit. In the UK, the judge can say “I think you called him a duck – now prove it.”
When a journalist wrote about a businessman who was getting money through the laundromat – an all purpose financial fraud vehicle run by a corrupt Baltic bank – she wanted to show the man’s business practices were outside the norm. But a UK judge ruled the meaning of the story was that the man was laundering money. She never said that and never even thought that but now she had to prove it. You may be forced to defend in court factual statements you yourself don’t believe are true.
Just to add to the pressure, whoever loses a UK lawsuit has to pay the legal expenses of both the defendant and the plaintiff. With lawyers costing more than $1,000 per hour, this can soon add up to $3-$4 million for a case.
Because London is the home to so many enablers, organized crime and corrupt persons, many people have standing in UK courts and can sue there regardless of where the story was published and in what language it was written. London judges still see the UK as a global empire and have proven to be quite willing to extend their jurisdiction to some of the worst people in the world. London is also the world’s capital for “reputation enhancement” firms who can take a murderous organized crime figure and turn him into an earnest businessman just trying to make it in the west. They do this by suing the media that write negatively about him.
UK law firms who represent some of the richest criminals in the world, tout their expertise for suing the media and encourage frivolous suits which will pay them handsomely regardless of the outcome. It basically makes the London courts the threat investigative journalists must plan for, which is why Organized Crime and Corruption Reporting Project edits its stories to London libel standards. Similar or worse laws in other common law countries make Ireland, Canada, Australia and even Singapore dangerous jurisdictions as well.
Protecting Yourself
The best way to protect yourself is through media libel and slander insurance. Offered in the US and UK for global coverage, this insurance prevents a media organization from being sued out of business. Commercial versions are available through Axis, Hiscox and a number of other good providers. But organizations not based in Europe or America can have trouble getting such insurance. And it can be quite expensive – upwards of $100,000 per year for high risk investigative newsrooms. And if you get sued a lot your insurance company will drop you quickly.
Reporters Shield is a membership organization that manages a mutual defence fund. Member benefits include paid legal defence wherever in the world you are sued. It’s truly the best option for international organizations in areas of the world with poor commercial insurance coverage or for those organizations that are underinsured. While it doesn’t cover judgments, it will provide pre-publication legal advice for high risk stories and guarantee you will have a good lawyer to defend you in court.
But you have to do more.
You have to train your editors to recognize and fix defamation and privacy issues in your stories.
Reporters Shield members have access to specialist lawyers to advise on high-risk stories pre-publication. You have to have a good fact checking regime to limit mistakes and you need to fix errors quickly if you become aware of them. You need to build a reserve fund equal to six months of your operating costs to have emergency money for a nasty legal case just in case your insurance runs out.
I cannot think of running an organization without knowing I have well trained editors who take defamation seriously, access to specialised lawyers and good reserves.
And for every editor that thinks they will never get sued, you might not have been sued yet but, if you’re publishing reporting that matters, you will be and if you’re not ready for it, it can be very painful.
The world has changed and those who tell inconvenient truth are targets. Those attacks will get worse. You need to build yourself into an armored tank impervious to the legal attacks that are coming your way.
Do it now before it becomes a problem.
Guest blog written by Drew Sullivan, Co-founder & Publisher, Organized Crime and Corruption Reporting Project.
