Should I be paying a lawyer for pre-publication review?

Pre-publication review by an attorney is not a magic answer to avoiding a libel suit. However, if a case goes to court, it will often help by showing the level of care taken to get facts straight.

But "pre-pub" can also delay the posting of your stories, and can be quite expensive. Most daily newspapers have never had lawyers read over every story before it goes into print. Magazines, especially monthlies, may well pay for that review, and broadcasters often have scripts approved if they know they could be controversial and they have the time to wait.

There are many benefits to pre-publication review. If done properly, the process -- which entails thorough and difficult questioning and verifying -- can add a precision of language, which reduces the risk of a lawsuit but also improves the final product. Such a rigorous review also demonstrates that extraordinary care was taken in reporting, writing and publishing the article and thus boosts your credibility and reliability.

Like any other decision, you must apply a cost/benefit analysis to determine whether pre-publication review is right for you. In doing so, you will want to consider factors like the time and budgetary constraints involved and the nature of the publication. For example, an online publication that features hard news stories from official sources is less likely to be the subject of a problematic libel suit than a web site that features offensive satires or parodies. Moreover, certain types of reports may be more "risky" than others. These include articles based on confidential sources, reports where the person attacked cannot be reached for comment or refuses to do so, pieces that target particularly litigious subjects and especially works that rely on undercover reporting, surreptitious recording or criminal conduct such as trespass or harassment. Keep in mind, though, that most defamation suits actually arise from routine stories where the allegedly defamatory material is not recognized or the article's seeming unimportance garnered little attention in the editing process. 

If you decide to hire a lawyer to review your work before publication, be prepared to help him or her understand some basic facts about how you run your online publication, namely your system for gathering and putting together the information and reports you publish. (If you need help identifying an attorney with experience conducting pre-publication review in your state, contact the Reporters Committee for suggestions.) This could include, for example, an explanation of your criteria for story selection and placement and your level of experience and reliability or that of your staff members.

You should also be prepared to provide your lawyer with all the factual information on which you based your report. Thus, always retain your interview notes, recordings of conversations and documents or other printed material you used.

It is important for you to understand that once a libel lawsuit has begun, the plaintiff is entitled to obtain copies of your notes, internal memos and other records relating to the suit, with exceptions for material subject to the attorney-client privilege and, in some cases, information about a confidential source. Defamation plaintiffs are permitted to delve into this editorial process because evidence of serious doubts about the soundness of information later published can lead to a finding of liability for defamation.

All publishers must be able to recognize a potentially libelous statement. If you know the law well enough to be able to identify a defamatory falsehood that could give rise to a defamation suit, you likely will be able to correct the problem with a tightening of wording and verification of facts, and avoid the time and money required by pre-publication review by an attorney. You can gain this familiarity with basic libel law through the Reporters Committee's library of free, online media law guides, or media law courses at universities or colleges. (The Reporters Committee also offers a 24/7 Legal Defense Hotline for information about specific issues.)

If you opt to forgo pre-publication review by a lawyer, you can personally vet the story for potentially libelous statements by carefully reading the report and asking yourself the following questions:

• Does the publication have the potential to injure someone's reputation? If so, is the statement true and thus absolutely protected from a defamation claim?

• Is the subject of the publication a public official or figure thereby required to prove that the allegedly libelous statement was published with actual malice?

• Is the statement shielded from liability by the fair and accurate report privilege, Section 230 of the Communications Decency Act or any other defense available to the media?

• Does the report, even if wholly true, have the potential to invade an individual's privacy rights?