Eight media companies have intervened in the Eramo v Rolling Stone action to raise the important issue of whether a correction constitutes republication for purposes of libel. A meaningful question for practitioners and journalists alike.
As previously reported, on November 4, 2016, a Charlottesville federal jury found Rolling Stone magazine liable for defaming Nicole Eramo, the former Associate Dean of the University of Virginia, in its now infamous article “A Rape on Campus”. Eramo sued Rolling Stone and the author of the story, Sabrine Erdely, for $7.5 million in reputational damages. The jury found that Eramo had established by clear and convincing evidence that Erdely acted with actual malice in making most of the allegedly defamatory statements and awarded Eramo $3 million.
On December 5, 2016, Rolling Stone filed a motion asking the judge to overrule the jury verdict. The magazine also argues that the jury was wrong to find, as a matter of law, that “republication” of the underlying facts of the article occurred when Rolling Stone published a correction acknowledging the weaknesses of the original article. The verdict has been stayed until the Court decides the motion.
The decision sent a chilling message to newsrooms, where the actual malice defense – clear and convincing evidence of subjective knowledge of falsity or reckless disregard of the truth – is often viewed as an impenetrable shield.
The media has not, however, been frozen to the point of inaction. On December 8, 2016, the Reporters Committee for Freedom of the Press and eight media companies (American Society of News Editors, The Associated Press, Gannett Co., Inc., Landmark Media Enterprises, LLC, Online News Association, Radio Television News Association, Society of Professional Journalists, and The Washington Post) submitted an amici curia brief (“the Brief”) in support of Rolling Stone’s December 5th motion.
The Brief exclusively addresses the question of republication and does not raise the other issues that will be on appeal, namely, whether there was adequate evidence that Erdely acted with actual malice. The Brief urges the Court to conclude publishers should not be penalized for informing the public of developing information and explaining their newsgathering decisions when inaccuracies are discovered (Brief at iv). Instead, the Court should encourage appending letters from the editors and notes to readers that set the record straight and avoid chilling debate on matters of public concern (Brief at iv).
The Brief makes a number of arguments:
- Public policy concerns favor corrections and clarifications to news stories: It is a fundamental principle of First Amendment jurisprudence that debate on public issues should be uninhibited, robust and wide-open. See NY Times Co. v. Sullivan, 376 U.S. 254 270 (1964). Journalists are held accountable in this uninhibited debate by correcting their errors, especially in the era of digital publishing where journalists can “pull back the curtain” more easily to enable readers to understand what has happened.
- The pragmatic prism of social reality. People increasingly (if not exclusively) rely on online publications for news. Links to the original article are distributed across social media platforms. To be accurate and relevant, journalists must be able to make modifications promptly to the original URL.
- Benefit to defamed individuals. The Brief rightly points out that corrections and clarifications actually enable defamed individuals to vindicate their reputation in a speedy, cost effective manner and far less chilling way than litigation. Interestingly, this notion was recognized in legislation drafted by the National Conference of Commissioners on Uniform State Laws in 1994: the Uniform Correction or Clarification of Defamation Act (“UCCDA”). The UCCDA was adopted only in three states.
- Rebutting allegations of actual malice. The Brief cites to a number of courts that have accepted evidence of a publisher’s willingness to retract challenged information as a way of rebutting allegations of actual malice (Brief at 8-10). A correction supports the assumption that the author of the article did not act with awareness of probable falsity of his or her statements or with utter disregard of whether they were false or not. See e.g. Hoffman v. The Washington Post Co., 433 F. Supp 600, 605 (D.D.C. 1977).
What happens if Rolling Stone fails in its appeal?
An obvious consequence is that publishers will undoubtedly think twice before correcting an article. Accuracy, as a result, may suffer. Or, as the Brief points out, publishers might choose to completely remove a story when issues of credibility are raised, harming archive integrity in the process.
Practically, the consequence of the Rolling Stone decision will be that the one-year statute of limitations that applies to defamation claims will be triggered anew upon publication of a correction. Republication by way of correction would thereby become an exception to the single publication rule, under which an entire edition of a newspaper, magazine or book is treated as only one publication, and the plaintiff is permitted to plead and prove merely a general distribution of the libel and show the extent of the circulation as evidence bearing on the damages – see e.g. Rinaldi v. Viking Penguin, Inc., 101 Misc. 2d 928, 929 (N.Y. Sup. Ct. 1979) (the bringing out of paperbacks by publisher constituted a republication sufficient to start the applicable one-year statute of limitations running anew).
Plaintiffs would get one year to sue a publisher not from the date of the original publication but from the date of the correction. Defendant media companies seeking to do the right thing and correct inaccurate information may, therefore, be less inclined to do so post Rolling Stone.
Publishers concerned with the effect of the Rolling Stone decision should issue corrections as soon as possible, so that the limitations clock does not reset more than a short amount of time beyond the initial publication date. Speedy corrections will also increase the chance of publishers being able to successfully rebut allegations of actual malice.
Ed Klaris is the founding partner of Klaris Law PLLC. Alexia Bedat is an Associate at the firm.
Am I missing something here? Was it the original November 4, 2014 Rolling Stone article which contained the defamatory remarks or their December 5 response to the Washington Post’s contribution on the subject, or both? Surely if the original article was found to evidence actual malice and this libel was effectively re-stated in the follow-up piece, that merely compounds the original malice (aka sloppy journalism). It therefore deserves to be treated as a re-publication.
However if the second article introduced new material, also of a defamatory nature, and the jury found this to be proven, then the ‘republication’ was in fact a new libel and rightly should have extended the period before limitation kicked in. Regretably the original piece by Alexia doesn’t make it clear what part was played by the ‘republication’.
The original November 19, 2014 article and the December 5, 2014 response were both found to be actionable in the verdict (available here http://www.politico.com/media/f/?id=00000158-309b-dac2-a15c-bb9b7c280000). The question is whether it is correct that a number of statements that were not *actually* included in the December 5, 2014 response were still declared in the verdict to have been republished in the December 5, 2014 response. In other words, the issue is whether an editor’s note should be treated as a republication of the underlying facts in the original article even if those facts are not repeated. I hope this makes the issue clearer!