Can I Sue the Media for Defamation?

Freedom of the press is a crucial component of the First Amendment of the Constitution and our society as a whole.  While most media entities take the protections provided by the First Amendment seriously and do an excellent job researching and reporting on topics, there are entities that will abuse these protections, and present biased and false reporting on certain topics.  

For victims of such defamation, the impact can be damaging to their reputation, but can they sue the media? The answer to that question is often very nuanced, and the path to successfully suing a media entity can be challenging. This article from Buckingham will discuss factors to help you decide if pursuing a defamation lawsuit against a media entity is realistic, the potential hurdles of such a lawsuit, and potential alternatives to litigation.

What is Defamation?

Defamation generally refers to the act of making false statements about a person or organization that causes harm to their reputation. Specifically, a Plaintiff must show that a false statement was made about them, that it was published to a third party, and that the statement caused damage to the plaintiff.  To prevail on a defamation claim, the plaintiff must also show that the statement by the Defendant was not privileged.  Many privileges apply to speech in the United States – particularly speech by media entities – and understanding these privileges can be challenging. 

Freedom of the Press and Freedom of Speech

The increased protections for the media arise out of the First Amendment to the United States Constitution.  The First Amendment declares that “Congress shall make no law […] abridging the freedom of speech, or of the press.” 

The proximity of these clauses regarding the freedom of speech and freedom of the press has raised many legal questions about how they are intertwined, particularly in defamation cases arising out of media entities’ reporting functions.  One of the main cases involving the media and defamation is Sullivan v. New York Times. The Court in Sullivan held that public figures must prove actual malice (that the Defendant knew, or should have known, that the statements were false), in order to prevail on a claim for defamation. 

The Court in Sullivan did not, however, state that this standard was strictly applicable to ALL claims involving the media.  Instead, the Court held that the standard a Plaintiff has to prove is based on the status of the Plaintiff, not the Defendant. The standard set forth in Sullivan, however, is applied to cases involving the media because media entities generally report on topics involving public figures or limited-purpose public figures. The argument is often presented that because the media is reporting on an issue, the subject of that report by the media is at least a limited-purpose public figure, and the higher burden of proof should apply.  While this argument is often persuasive, each situation is different, and it is not a bright line rule that reporting on a subject automatically makes the subject some form of a public figure. 

Other substantial privileges are available to the media in defamation cases and these privileges can make it difficult for a Plaintiff to prevail on a defamation claim against a media defendant.    

Protections for Media Entities

While there is not a specific, heightened burden of proof applicable to media entities in defamation claims, there are several other protections or privileges available to media entities when they are named as defendants in defamation cases.  These protections, or defenses, apply in a wide variety of scenarios in which defamatory statements can be made by media defendants, and these protections can raise that burden of proof, making it more difficult for a defamation plaintiff to pursue their claims, even if they are a “private” figure. The general protections that are applicable in defamation cases, and that may apply to media defendants, include:

Absolute Privilege 

While absolute privilege generally does not apply to publications by media defendants, it is important to understand what this privilege entails in order to contrast it with the related privilege – “qualified privilege” – that, in most circumstances, will afford media defendants a level of protection. Generally, absolute privilege only applies to statements that are made during official governmental proceedings or during judicial proceedings. When absolute privilege applies, it serves as a complete bar to liability. This means that statements made during legislative meetings, congressional hearings, and court hearings cannot be determined to be defamatory. Absolute privileges apply regardless of the motives of the speaker in making the statement, such that even if the speaker made the statement knowing that it was false and with a desire to harm, the absolute privilege will shield the speaker from liability. 

Qualified Privilege 

Qualified privilege, while similar to absolute privilege in that it provides protection from liability, it differs from absolute privilege in two crucial respects: (1) the privilege covers a broader array of statements, but (2) affords more limited protection. 

Qualified privilege will generally provide protections for, amongst other things, statements made about matters of public interest, reports of judicial proceedings, or statements made in an employment setting. When this privilege applies, a Plaintiff can still prevail but will have to prove the defendant acted with actual malice in publishing the statements. Thus, unlike absolute privilege, qualified privilege does take into account the speaker’s intent when publishing the statement. Notably, statements of public interest, or that are considered ‘newsworthy’ can also be privileged against claims of invasion of privacy as well. 

The most common qualified privilege asserted by media entities is that of fair or neutral reporting.  This privilege stands for the idea that a fair or neutral report of a proceeding, even if key details are omitted or misconstrued, cannot be considered defamatory.  This often arises when there are inaccuracies in reporting on criminal or civil cases that involve embarrassing details.  Even if the reporter gets some details wrong, that might otherwise give a defamatory slant to a story, if the report is neutral to both sides or a fair accounting of the events, the report could be privileged. 

Substantial Truth

If applicable, the first defense any defendant should assert in a defamation case is “truth.”  If a statement is true, it can’t be defamatory because one of the key elements of defamation is that the statement is false. In other words, the truth of an allegedly defamatory statement will serve as an absolute bar to liability because the plaintiff cannot establish an element of their claim. 

In addition to the general defense of “truth,” there is also a defense of “substantial truth” available to defamation defendants. Substantial truth is the idea that the majority of the statement is true to the point that the meaning of the statement cannot be defamatory. A common example of “substantial truth” that might arise in the context of a media publication is a report stating that someone tested positive for cocaine, when in fact they tested positive for heroin.  While there is a subtle difference between the statement and the truth, the substantial portion – that the subject tested positive for narcotics – is correct. 

Opinion

Likewise, statements of opinion are always considered privileged and are incapable of being defamatory.  An analysis of what statements qualify as opinion varies from state to state, but the defense of opinion to a defamation claim is available in every jurisdiction. Media entities may be able to avail themselves of the privilege or defense of “opinion,” particularly in the context of editorial or pieces that are inherently intended to provide the “opinion” of the writer. If you are unsure whether a statement is one of opinion, you should consult with an experienced defamation attorney before moving forward with the legal process.   

Reporter’s Shield 

While not necessarily a defense to a claim for defamation, reporters can assert a “shield” defense in the context of the discovery process, which can keep a reporter from having to disclose a source for the information they used to compile a news story.  This can become problematic in defamation cases, especially where a plaintiff has to prove actual malice – i.e. where a plaintiff has to show that a reporter knew or should have known that a statement was false. If a reporter can shield the identity of the source, but rely on having a source for their reasonable belief that a statement was true, it can be near impossible for a plaintiff to hit that burden of proof.   

Filing a Defamation Case Against Media Entities

If you have considered all of the defenses available to media entities and still would like to pursue an online defamation case against a media entity, you can proceed with the normal process for starting a case. To properly prepare for a case against a media entity, however, you should have a statement prepared before filing, and be prepared for additional media coverage of the case. 

Alternatives to Suing the Media

While it is possible to sue media entities for defamation, it can be incredibly difficult to do. Before going down the lengthy and costly journey of a defamation lawsuit, it is important to consider possible alternatives for meeting your goals in dealing with defamatory statements. 

• Request a Correction or Retraction:  If the statements made by the media entity are easily proven false, but perhaps there are questions on whether you can prove actual malice, you can always approach the media entity and request a correction or retraction.  Most reputable media entities will be willing to correct the record if they get something wrong, and having that correction or retraction might help you in repairing your reputation. 
• Request a Removal from the Internet: Depending on your goals in dealing with the false statement, requesting a removal from the media entity’s website might provide you the relief that you need.  Most media entities will consider the arguments related to the ongoing impact that these stories might have on the subject in the future and will consider removing the story from the Internet or deindexing the story to lessen that impact.

Suing a media entity for defamation is a serious step that requires careful consideration and legal guidance. Understanding the elements of defamation, the legal process, and potential challenges is essential for anyone looking to pursue claims for defamation. Consultation with a qualified attorney is crucial to navigating the complexities of defamation law and determining what the best path is for you to achieve your goals.

If you’re considering pursuing a defamation claim against a media entity, reach out to the Defamation team at Buckingham today for a free consultation.