June 4, 2009 / Rights in Balance

Protecting reputations may prevent libel

Written by Randy Swikle

When it comes to libel, the law does not have a sense of humor.

Libel is injury to reputation. As the Associated Press Libel Manual puts it, “Words, pictures or cartoons that expose a person to public hatred, shame, disgrace or ridicule, or induce an ill opinion of a person are libelous (unless the facts stated are provably true).”

A doctored photograph showing a classmate exiting a pornographic bookstore may be meant as a joke, but when the boy’s mother sees it in the yearbook, she will not be laughing. Neither will the court.

The yearbook staff member, who has not yet learned proper journalism ethics, may think this prank on his friend is innocent, but whether his intention was friendly mischief or downright malice, the prankster put himself and the yearbook staff in legal jeopardy.

If the plaintiff – in this case, possibly the boy’s mother acting on his behalf – proves publication, identification and harm, then proving fault – the final element necessary to win a libel suit – does not necessarily depend on the offender’s motive. If the plaintiff proves negligence (failure to exercise ordinary care) or malice (defendant knew the information was false and/or had reckless disregard for the truth), then the fault requirement is achieved.

A court will not be impressed by a claim that the offending expression was meant as “only a joke.” And if it is shown that editors were negligent by not discovering the libelous expression before it was published, they too may be held liable.

Even a student who is not on the yearbook staff can create legal problems. For example, senior superlatives and personal quotes often pose a risk, especially if the expression implicates someone in an illegal or immoral act. For example, a yearbook feature quotes a student who relates that a personal highlight of his senior year was the night when he and (name of classmate) painted his school’s mascot on the football field of a rival school. Unless the claim could be proven, it could be the basis of a libel suit initiated by the implicated friend.

Student journalists must remember that they may be held liable simply for reporting a libelous statement made by someone else. After all, they are repeating the libel. For example, if the principal is overheard telling someone that a teacher was fired for stealing a school computer, make sure that you verify the principal’s statement before you print it. Remember that truth is the best defense in a libel suit. Secure a court record stating that the teacher was found guilty of the theft. It may be that the school did not pursue the alleged theft in court and was simply satisfied to have the accused teacher gone. If that were the case, then both the principal and the yearbook staff could be in trouble if they cannot prove that the former teacher committed the theft.

One exception regarding repetition of libel is that, in most cases, it is permissible to repeat the libel in a story based on the filing of a suit.

Every yearbook staff member should be cautioned to keep a lookout for “red flags” regarding libel. Students are particularly vulnerable to careless mistakes, because their understanding of libel law and their reporting experience is likely more limited than that of professional journalists.

Here are a few examples of red flags to watch for.

  • Disguising a subject’s identity – Sometimes it is nearly impossible to confirm information for a sensitive story. For example, a feature exploring how children are affected by divorce can be challenging to pursue. The teenager may be prejudiced against one parent and make potentially libelous statements about that parent. To help protect the yearbook, the teenager and the parent in disfavor, the reporter may disguise the teenager’s identity.But disguising identity is much more than using a fake name. If you use any real characteristics about the person or her situation, such as, “She says her supportive mother always attends her cheerleading events,” you are more likely to identify your source even though you did not use her real name. Additionally, in creating a disguise, you have to be careful that you do not end up with an identity that resembles a third party who has nothing to do with your story.If it is essential to disguise a person’s identity, then it is important to tell your readers that you are doing so. Think twice about disguising identities, however. Professional publications rarely withhold names, because doing so has a negative effect on credibility.
  • Group libel – If the yearbook sports reporter writes that the varsity boys basketball team had a poor record because the players broke curfew and went drinking every weekend, any member of that group who did not break curfew and go drinking every weekend could successfully sue for libel. If the reporter writes that one (unnamed) player of the starting basketball players is selling drugs, then the four who are not can sue for libel, because their good names become suspect.Since only individuals can sue for libel, any defamatory statement must reasonably be interpreted to refer to a specific individual in the group. In large groups – sometimes defined as larger than 25 people – individual members cannot be defamed by group reference. However, there are significant exceptions to that rule-of-thumb.
  • Gag and insincere captions – A caption identifying a special education student as “Most Likely To Graduate College With Honors” or a girl as “Most Likely To Get An Extreme Makeover And Become Playmate of the Month” holds high potential for a libel suit.The list of red flags is endless. Yearbook editors must be diligent in stressing to all staff members the importance of using sound judgment, practicing noble ethics, and being profoundly cautious not to impugn the reputation of innocent people. Proofreading must not be confined to style and grammar. Check for libel and possible copyright violations, too.Most important of all, if you identify a red flag, seek legal help. Libel laws are complex. An authority on libel will have a more panoramic vision for answering your questions. The Student Press Law Center in Arlington, Va., provides free legal advice to students. They can be reached at 703-807-1904, or visit them on the web at splc.org.

    Have fun working on the yearbook, but do not be funny in a way that can land you in legal trouble.

  • Randy Swikle

    Randy Swikle retired in 2003 after 36 years of teaching journalism and advising nationally award-winning students and publications. During 34 years in the Johnsburg School District 12 in Johnsburg, Ill., Swikle was honored as National Journalism Teacher of the Year by the Dow Jones Newspaper Fund and has received the NSPA’s Pioneer Award and the JEA’s Lifetime Achievement Award. Swikle is a member of the JEA Scholastic Press Rights Commission and speaks across the country on the First Amendment.