Tuesday, June 19, 2012

Texas case may affect future of defamation law in the state

The Statesman.com is reporting that the Texas Supreme Court has agreed to review a libel case that could substantially affect the way news media report on controversies.  At issue is whether Texas courts recognize the "third-party allegation rule," which can shield reporters and media companies from defamation lawsuits if an allegation is accurately reported, even if the claim itself is untrue or mistaken.  The case is called Neely v. Wilson.  Go here for more details.

This "third-party allegation rule" sounds like a combination of the widely accepted "fair report privilege" and the not so widely accepted "neutral report privilege."  The fair report privilege may protect a reporter from liability if the report relied accurately upon official public documents or statements by a public official. This privilege enables someone to escape liability for a story about what people say during a council meeting or from the witness stand during a trial or to quote from public records even if the information turns out to be false and defamatory.  The "neutral report privilege," on the other hand, protects the press from liability for reports on matters of public interest when the report accurately repeats an accusation made by one public figure about another.  Without these privileges, if you publish what another person has said or written and that statement turns out to be false and defamatory, you may be liable for defamation too. 

The "third party allegation rule" discussed in the case in Texas seems to be broader than these two privileges in that it is not limited to reports that originate in official documents or statements or limited to public figures. The plaintiff has argued that recognizing such a broad privilege would give the media immunity in too many cases, an argument I think is valid. 

The question is what limits are there to the defense the defendant is claiming protects its right to report on a story of public concern. Saying that there can be no immunity because the press is simply repeating what someone else is saying, would be a radical departure from standard defamation theory and practice.  It would eliminate an incentive for the press to investigate a story or allegations fully before publishing them.  On the other hand, the press can't be forced to be 100% accurate when relying on other sources as it must do most of the time.  Thus, the better public policy will be achieved by reaching some compromise between the two interests that need to be protected.

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