When omission of material facts may constitute defamation

Digital journalists and other publishers may opt, for whatever editorial reasons they choose, to omit certain information from a particular report. In some cases, such a decision crosses the line from the ethical issue of one-sided journalism to the legal issue of libel by omission.

This type of defamation claim is not new; various courts nationwide have considered the cause of action and stated that defamation by omission plaintiffs must show that the statement left a false impression that would be contradicted by the inclusion of omitted facts. Evidence that favorable facts or facts that should or could have been included is insufficient to prove falsity, courts have held.

In 2005, for example, the Washington Supreme Court ruled that a retail store owner could not meet this standard in his libel by omission suit against a television station and its reporter for their story about the owner’s dealings with a 40-year-old man with Down syndrome. The broadcast reported that police arrested the mentally disabled man, who regularly visited local businesses and offered to clean their windows in exchange for candy, after the store owner and his wife reported that he threatened to shoot them.  

According to the court, the owner’s evidence for his claim that the newscast created a false impression was based solely on the first broadcast and impermissibly ignored subsequent stories that negated this impression by reporting his side of the story.    

In rejecting the lower court’s finding that the inclusion of omitted facts would have made the store owner’s seemingly cruel actions appear less arbitrary and sensitive than in the broadcast, the high court noted that “[a]rbitrariness and insensitivity are not the test. What is necessary is a provably false impression which is contradicted by inclusion of omitted facts.”    

That is the exact impression created by certain material omissions from a newspaper’s report that a woman shot her husband and another woman after finding them together in the second woman’s living room. In this classic example of actionable libel by omission, Memphis Publ’g Co. v. Nichols, the Tennessee Supreme Court held that the article was defamatory because its “clear implication” was that the husband and second woman were having an affair. The report omitted the fact that the two were not alone and that several other people were in the same room during the wife’s attack. The court stated, “[t]he proper question is ... whether the libel as published would have a different effect on the mind of the reader from that which the [complete] truth would have produced.”

Therefore, a careful web-based writer considering omitting certain facts from a report would likely ask him or herself if publication of the complete facts could conceivably lead a reader to arrive at a conclusion different from the one conveyed by the partially reported account. Presenting both scenarios to a third party who has no knowledge of the factual circumstances and evaluating how the inclusion of prospectively omitted facts affected that person’s impression of what occurred could be instructive to this determination. If including the omitted facts contradicts the impression the person had after reading the partially reported story, then such an omission could constitute falsity sufficient to give rise to an actionable libel by omission claim.