By: M.L. Stein
Publishers and the public may see the ombudsman as the conscience of the newspaper, but his utterances can open a wide hole for a plaintiff in a libel suit, a house lawyer warned.
Be very careful of what you write and, in some cases, don’t write anything, Harold W. (Hal) Fuson Jr., vice president/legal affairs for the Copley Press, told delegates at the annual conference of the Organization of News Ombudsmen in San Diego recently. “Think about what that memo will look like in 72-point type on a courtroom wall,” he added.
Fuson, author of the book Telling it All: A Legal Guide to the Exercise of Free Speech, lumped ombudsmen’s remarks, ethics codes and printed corrections together in terms of the trouble they may cause in a defamation action.
He posed the mock question: “How can that be? Codes and ombudspeople are about ethics and morality, not legal liability, right? Wrong. In the hands of a skilled plaintiff’s lawyer, a nominal violation of an accepted code is just what she needs to get to a jury.” Even better for the opposing attorney is a pronouncement on the op-ed page correcting a misstatement, Fuson noted.
The ombudsman’s weekly column is much less dangerous than an intraoffice memo, the speaker went on.
“Usually in a column,” Fuson explained, “the writer has had time to give the matter some thought. But when an ombudsman fires off a letter to an editor, saying, ‘Why did you let that idiot (a reporter) do this again?’ he is not necessarily being thoughtful.”
Fuson pointed out that the complainant’s attorney can demand and be given anything that’s written, whether in a column, e-mail or memo, and can even obtain the hard disk from a computer.
“They will want all the material preserved in any medium,” Fuson said.
“Don’t spread those documents around,” he advised.
“Don’t put them on bulletin boards. Don’t create documents you don’t need to create or encourage other people to create documents they don’t need.”
Fuson also counseled ombudsmen on how to interview a reporter, who is the subject of
a complaint: again, carefully. “
Stick to the facts and don’t get
exercised about beating him up in the process,” he recommended. “There are neutral ways to ask
questions.” One tactic to avoid,
the lawyer observed, is framing
the query so as to presume the answer. “In short, don’t ask loaded questions,” he urged. “In this way, the documents you write probably are not going to cause you problems.”
Corrections are another means newspapers use to demonstrate their sense of responsibility, but they, too, carry the seeds of trouble, Fuson reported.
He noted that California has a retraction statute that offers the print media a degree of libel protection. In states without such a law, however, a paper that prints an acknowledgment of its error puts itself in greater danger with that admission, he stated.
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