Bulletin photo by Angel Feliciano

A member of the audience asks Robert Bertsche a question during a workshop on legal issues for journalists.

Lawyers advise
How to navigate
gray areas in news law

By Samantha Laine
Bulletin Staff

The best way for a journalist to avoid a libel judgment is to avoid going to trial, according to Robert Bertsche and Asya Calixto of Prince Lobel Tye LLP of Boston.

“The juries are not, in general, friends to the media. The law, however, is a strong friend of the media,” Bertsche said.

Bertsche and Calixto presented a “Legal cram course” workshop to about 15 people Friday, Feb. 10. The workshop was held during the New England Newspaper and Press Association’s winter convention in the Boston Park Plaza Hotel.

Bertsche said libel issues are complex. Journalists need to be aware of potential problems stories pose if published. By staying aware, journalists and editors can remain in control of the situation, he said.

“Defamation problems are usually the ones you can see coming. This is not to get you to not publish your articles. After all, we’re lawyers: We want you to get sued,” Bertsche said.

After members of the audience laughed, Bertshe said avoiding liability issues boils down to taking a careful approach to the client.

“Your initial response makes all the difference in the world,” Bertsche said.

Defamation is the most common legal issue journalists encounter. For someone to have a defamation claim, by law the content must:

• Be false
• Be presented as a statement of fact
• Be about the person filing the claim
• Be about a person who is identifiable and living
• Harm someone’s reputation or disparage a product
• Occur in a “respectable segment of community,” meaning it harms the individual’s reputation within the established professional community
• Be published with fault (if a public figure) or negligence (if not a public figure)

With those guidelines, most newspapers know when they are walking close to the defamation line, Bertsche said. When stories fall in the gray area of defamation, the newspaper must judge for itself whether the story is worth the risk, Bertsche said.

“There’s going to be some stories where you’re going to say, ‘This is worth fighting for.’ You ought to have the lawyers in the equation if you know there’s that risk. Ask yourself: ‘What can we do to make it safer? Is this story worth it or not worth it?’ That will affect how far you push the envelope. You can almost choose which ones you’re going to meet head on,” Bertsche said.

For a public figure to win a defamation case, he or she must show that the journalist meant “actual malice” or showed reckless disregard for the truth. Anyone else who claims defamation must prove at least negligence — or carelessness — on the part of the journalist.

Newspapers are liable for what they and their employees post, whether it is in print or online. Newspapers are also liable for third-party posts if the content is in print, but not if the content is online. Newspapers are allowed to take down, or may refuse to post, third-party comments. They are also allowed to edit third-party posts materially; Bertsche said, however, that if a post requires editing, it is best to delete the entire post than to risk being held responsible for the edited material.

Bertsche also discussed the process of getting information. Journalists are known for getting information from sources in creative ways; although it is important to get information, from a legal standpoint it is more important to be careful, Bertsche said.

“Off the record? Not for attribution? On background? On deep background? I don’t know what the hell these mean,” Bertsche said.

He advised making sure that you have the subject’s consent before publishing information and reminded the audience that it is the journalist’s responsibility to use integrity.

Calixto concluded the session by discussing copyright law. She reminded the audience that copyright owners have the sole right to reproduce work, make derivative works, distribute copies of the work, publicly perform and publicly display the work.

According to the doctrine of fair use, however, journalists may use copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship or research or both, without infringing on copyright, Calixto said.

The bottom line with libel and copyright issues reverts to integrity. Many legal issues are black and white, but many might leave journalists in a gray uncertainty. Whether to publish a story is determined by editorial judgment.

“Ask someone: How would you feel if they said that about you?” Bertsche said.

Bertsche is a former newspaper and magazine journalist who is now a partner in Prince Lobel. He specializes in protecting clients’ First Amendment, intellectual property, business and employment interests.

Calixto is an associate in Prince Lobel who concentrates on media and intellectual property litigation and prepublication review.

POSTED 4/5/12