Protection for libelous statements made by others: Fair and accurate report and neutral reportage privileges

Journalists are generally immune from liability when they fairly and accurately report incorrect information that comes directly from an official source. This would include material contained in final reports of government bodies and statements made in official meetings and proceedings open to the public and concerning a matter of public interest, provided the statements are fair and accurate reports and abridgements of the underlying information. A fair and accurate report need not repeat verbatim what transpired, but it must contain the gist or substance of the reported event. As such, providing information that reflects all sides of an issue and refraining from inserting editorial comments into reports of official statements will help ensure that the privilege applies to the allegedly defamatory statements.

In many states, the privilege also extends to official statements made outside formal proceedings or meetings, notably the statements of law enforcement officers and attorneys. A couple of unique issues arise in these two situations, however. A fair and accurate report of an official's statements -- a local police chief's comments in a press release, for example -- that is explicitly attributed to that official may be insufficient to protect a reporter who knew or should have known that the official's statement was false. Thus, a prudent author would likely rely on official documentary sources over statements made outside official proceedings whenever possible and carefully evaluate the truthfulness of comments in this latter category, including a consideration of whether the official who made them had a motive for providing less-than-accurate information.

Moreover, application of the privilege to accusations contained in lawsuits varies among states. While some grant the privilege as soon as a lawsuit is filed, others do not extend the protection until the filed lawsuit has gone before a judge. Until recently, when the state Supreme Court ruled that the privilege applies to pretrial filings, journalists who reported from court documents in New Jersey were only protected from libel suits if they used final judgments.

Less broadly recognized, the neutral reportage privilege, in those few jurisdictions that recognize it, protects a reporter from liability when he or she accurately and impartially reports a defamatory accusation against a public official or figure cast by a responsible, reliable organization or person. The idea behind the privilege, courts have said, is that such accusations are newsworthy because they are made, and the public interest in being fully informed about such controversies requires that the press be able to report them without fear of liability. Note that this rationale extends to matters of legitimate public interest. Accordingly, an accusation that is relevant to the public good is more likely to be privileged than one only marginally related to an important public issue or controversy.

In addition, publishers who live in states that recognize the neutral reportage privilege increase the likelihood of being protected under it if they explicitly attribute quotes so it is clear that the statements reflect the opinions of other people, the titles of whom should be included to indicate that the speaker is a reliable source.