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Newsgathering in Pennsylvania

Defamation, Invasion of Privacy and other causes of action

Melissa Bevan MelewskyMedia Law Counsel

The Pennsylvania NewsMedia Association717-703-3048

melissam@pa-news.org

Defamation

• False, Defamatory statement • About an identifiable person• Published to a third party• Published to a third party• Causing injury to the person’s reputation

What is Defamatory?

• Any communication that tends to harm a person’s reputation or injure the person in his or her business or profession.p

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Things to Consider

• Defamation by implication, innuendo• Potential innocent interpretation vs. alternate

defamatory interpretation - CASE WILL GO TO JURY

• TEST: What would the average reader understand this article to be saying?

• Headline or photograph alone can be defamatory• Letters to the Editor

Falsity

• Statement must be false to be actionable• Substantial truth is sufficient• Whose burden to prove truth or falsity?• Whose burden to prove truth or falsity?

– Public officials/public figures – Private individuals

Identifiable Plaintiff

• Individual Plaintiffs• Large groups (25 more more)

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Fault

• Public Figures and Public Officials– Actual Malice – published with knowledge of

falsity or reckless disregard for the truthy g– Reporting procedures

• Limited Purpose Public Figures• Private Figures

– Negligence

Defenses• Fair Report Privilege

– Official proceedings– Conditional privilege

• Opinion– Is statement capable of being proven true or false?– Is statement based on or does it presume underlying

false/defamatory facts?• Consent• Statute of Limitations

– Generally one year from date of publication. Internet postings complicate this issue.

Not a Defense

• Neutral Reportage Privilege• Statements made by others and merely

“quoted” or repeated in newspaperquoted or repeated in newspaper

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Avoiding Libel Suits

• Check sources • Get independent corroboration• Attempt to verify accuracy• Be careful with details• Getting the “other side of the story”• Be cautious when editing story/crafting headline• Photographs• “Red alert” words• Retractions

What to do about Complaints

• Be polite• Do not admit error or fault• Talk to editor supervisor or attorney• Talk to editor, supervisor or attorney • FOLLOW NEWSPAPER’S PROCEDURE

Invasion of Privacy

• Public Disclosure of Private Facts– Publicity given to– Private FactsPrivate Facts– Which would be highly offensive to a

reasonable person, and– Are not of legitimate concern to the public

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Invasion of Privacy (cont.)

• False light in the public eye– Publicity which– Places the plaintiff

In a false light before the public– In a false light before the public– In a manner that is “highly offensive”

• Similar, but not the same as, defamation• Newsworthiness/Matters of Legitimate Public

Interest• Often brought where facts published are literally

true, but are selectively disclosed in a manner creating a false impression

Invasion of Privacy (cont.)

• Right of Publicity– Misappropriation of– Plaintiff’s name or likenessPlaintiff s name or likeness– Without consent

• Common law• Pennsylvania Statute

Invasion of Privacy (cont.)

• Intrusion upon seclusion– Highly offensive– Intrusion– On the plaintiff’s solitude or seclusion

• Must have reasonable expectation of privacy

• Public places• Accident scenes

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Invasion of Privacy Checklist

• Consent from the Subject– Adults vs. Children– Public vs. private figures

M th d f Obt i i I f ti• Method of Obtaining Information– Public places vs. private places– Information in public records

• Content– Would publication offense community standards of

decency?– Is information of public interest?– Is information true?– Is information vital to story?

Taping of Conversations

• Two-party consent required in Pennsylvania pursuant to the PA Wiretap Act

Trespass/Entry into private property

• Trespass a crime• Civil penalties are also possible• Always get permission of the property• Always get permission of the property

owner prior to entry

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Online Content and Libel • Online content created by newspaper staff or

anyone acting on behalf of the newspaper is subject to the same laws as traditional print materials.– Tweets, blog posts, Facebook posts

• Section 230 of the CDA – third party content• What is not protected?• Statue of Limitations

– Linking does not restart the statute of limitations; not “republication”

The PNA Legal Hotline

• PNA members can contact the Legal Hotline with legal questions at anytime.

• There is no charge for Legal HotlineThere is no charge for Legal Hotline services.

• (717) 703-3080• (717) 703-3001 (fax)• melissam@pa-news.org