What are the elements of a defamation claim, whether it is libel (written) or slander (oral)?
Defamation is defined as a false statement of fact (not opinion) about a specific person or entity – this could include a company, NGO or individual – published to someone, other that the subject of the statement, which can be shown to have caused, or has the potential to cause, harm. In the United States, it is the responsibility of the plaintiff (the accuser of defamation) to show that the statement in question is false.
For the journalists, if the statement(s) made is (are) true, the plaintiff has no cause or claim for defamation.
For a statement to be defamatory, the message must be deemed negative in a larger social sense, and it must be specific to an individual entity. For example, it is not defamatory to say that all doctors are swindlers, but it would be if you spoke only of one doctor.
Again, it must be a statement about a person or entity that is published to someone else. Publication is an essential part.
It is critical to understand that libel and slander can occur at any point in the communication (not just publication). Even if you make the statement in an interview to another person, you’ve published that claim, about someone, to another individual. If discovered by the subject of the defamatory statement, it can be cause for suit.
Remember that email and texts are publications as well even though that they private. Thus, it is prudent when communicating with sources and colleagues to either avoid the use of questionable assertions that are not verifiably true, or to specifically include a line in the legend of your communication that explains that these are just questions, they are not statement of fact and they are not intended to be published.
If someone gives you her name and password to access her employer’s website, should you use that information to access the site?
The rule of thumb for a journalist is to limit your activities to those reasonably undertaken by a sane person. Therefore, don’t pretend to be someone that you are not. This is a criminal act that can be adjudicated under hacking and wire-tapping laws.
On the topic of access to private space, such as a company’s website or database, the journalists can attempt to gain access provided their attempt does not demand they appear to be someone they are not. If you leave the sign-in fields blank and press enter, and it works, you are free to use the information you find. In this situation, they have not secured it and can therefore not expect this information to remain secure.
Additionally, it is acceptable to listen to a conference call between associates if invited to do so in the presences of one of the rightful participant’s. This, of course, is juxtaposed to signing in to a conference call for which you were not invited, and thus need to appear as someone else.
How much time should you give the subject of an article or video to comment before publication?
One of the most important rules is not to allow the source to determine the publication timeline for your work. That said, it is important to provide enough time for the subjects to comment on your content as is reasonable under the circumstance.
If the questions are quick and simple to answer, you need not provide excess time for the subject to do so. If your story demands that they verify a longer series of comments or facts, then extra time will likely be reasonable and necessary.
While it is not advisable to send subjects a list of questions before the interview, it is likely worthwhile to prime the interviewee with the subject of your story or the themes which will be of interest. This can expedite the interview and response process.
What is the rule on reading back quotes to sources? (Something of a trick question)
There is no hard and fast rule on reading back quotes. For some journalists, this is an activity they strictly do not support; others choose to do so each time they interview a source.
While accuracy of reporting is key, anytime a person is allowed to hear or be read their comments, there is a chance of speaker’s remorse. However, the journalist stands a better chance of avoiding speaker’s remorse if the quotes are verified immediately after the interview.
Again, while there is no industry standard on the topic, reciting your quotes for the interviewee will provide a general overview of your content without betraying the argument that you will be crafting. The more you can keep the subject comfortable while ensuring they are removed from the production process, the easier the process will be.