Libel by omission

From the Summer 2011 issue of The News Media & The Law, page 32.

In the summer of 2008, a West Virginia woman called a local television station to report that her four-year-old son had been sexually abused at a local daycare center.

The state Department of Health and Human Resources had recently investigated the daycare center based on her allegations, and its report concluded that the “possibility that an incident of [child neglect] could occur is likely.”

Before Charleston television station WCHS reported the story, it visited Kim’s Kids Daycare, where owner Kim Tomblin declined to comment on accusations that the child had been abused at the daycare center.

A two-minute story aired that evening:

“Some serious allegations of abuse and neglect have the state keeping a closer eye on a Barboursville daycare,” an anchor said. The reporter who investigated the story, Elizabeth Noreika, continued: “A mother says she has taken her children out of Kim’s Kids child care in Barboursville because she says her young son was sexually abused. . . . A woman says this daycare in Barboursville abused her trust and her child.”

However, the story does not mention that the alleged abuse happened between two four-year-old boys. One boy stuck his finger in the other boy’s rectum and grabbed his genitalia.

The station’s failure to include that detail is a possible example of a concept known as “libel by omission,” which occurs when a reporter somehow omits facts that would tend to negate an implied defamatory meaning.

Tomblin sued the local television station in a local court, but the television station removed the case to a federal District Court. The court granted the TV station’s summary judgment motion, dismissing the case because “all of the statements in the . . . broadcast were literally true and . . . the statements, taken together, did not evince a false implication endorsed by WCHS-TV8.”

In May, the U.S. Court of Appeals in Richmond, Va., (4th Cir.), in Tomblin v. WCHS-TV8, overturned that decision, holding that the case should continue in the trial court. The court rejected the station’s argument that the statement “this daycare . . . abused [the mother’s] trust and her child” was true because the daycare was legally responsible for the abuse, even though, as station officials acknowledged, the daycare’s employees did not abuse the child.

“This rationalization . . . does not, however, transform a misleading statement into a true statement,” the court said. “A reasonable jury could find that this statement was defamatory, inasmuch as there is material difference between a daycare worker actually abusing a child in his or her care, and a daycare worker negligently supervising a child such that he or she is ultimately responsible for one child’s assault of another child.”

The case represents a step backwards in a more recent trend of courts trying to tamp down on libel by omission claims, according to Steven Zansberg, a Denver First Amendment attorney who co-authored a 2002 article about libel by implication.

The article noted that while “libel by omission” and “libel by implication” are two different concepts, the distinction between them “has no practical significance, because the impact of every allegedly defamatory implication or interference can arguably be lessened or even negated by including more information.”

“Libel by implication is not a new phenomenon,” he said. “Courts in the more recent past have tried to limit its reach or impose various restrictions, acknowledging that there is always a possibility for unintended implications to give rise to a claim.”

Zansberg pointed to a 1993 Fourth Circuit case, Chapin v. Knight-Ridder, where the leader of a charity that was taking donations to send “Gift Pacs” to American soldiers in Saudi Arabia sued The Philadelphia Inquirer after it published an article questioning the program’s finances. The head of the charity, Roger Chapin, alleged that by saying the charity was charging donors “hefty markups” for what it paid for the Gift Pacs, the newspaper created a false implication that Chapin personally was pocketing a large profit.

The Fourth Circuit held that, when a libel claim is based on allegedly false and defamatory implications, a “plaintiff must make an especially rigorous showing where the expressed facts are literally true.” The court said “the language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.”

The “intent” requirement — the idea that in order to be liable, the television reporter would have had to actually intend to imply that adults at the daycare abused the child — is an idea missing from the recent decision, Zansberg said.

“I think it is somewhat of a backtrack,” Zansberg said of the recent decision. “I find it curious that the [Chapin] decision was not cited or addressed in the majority opinion, and that’s somewhat troubling.”

Leaving it up to a jury

In the Tomblin case, the Fourth Circuit also pointed out that the television broadcast used the term “sexual abuse” frequently to describe what happened at the daycare, even though the Department of Health and Human Resources report about the incident did not use the term.

“In the context of a report about a daycare center involving the supervision of young children, the term ‘sexual abuse’ is especially alarming and could reasonably lead a rational jury to conclude that the term used in that context indicated that an adult at the daycare sexually abused a child,” the court said.

The court found that, when taken as a whole, there could be a question of fact for the jury as to whether the broadcast produced a false implication, innuendo or insinuation about the daycare center.

Moreover, the court pointed out that the reporter had a copy of the report detailing that the abuse came from another boy, and still omitted this “most important exculpatory detail” from the broadcast. The reporter’s decision to “air a news report suggesting that an adult abused a child, despite her knowledge that there was no allegation of child abuse” could lead a jury to conclude that the story was aired with knowledge of or reckless disregard for its falsity, a key element in a defamation case involving a matter of public concern.

Getting into a reporter’s head

Libel by omission “is an extremely dangerous tort,” said Michele Earl-Hubbard, a media lawyer in Washington state who won a 2005 libel by omission case on behalf of television station KXLY and one of its reporters in the Supreme Court of Washington.

“You don’t know what you’re going to be sued for,” she said. “You had access to this one fact, you said something different, and if you’d put that in, it would have changed people’s views.”

The problem is figuring how to protect against libel by omission allegations, she said.

“As a lawyer who vets news articles, it is a lot more difficult these days. . . . You’re going back into [a reporter’s] head about what they didn’t write about, and I think that’s an intrusion on the news reporting process,” she said.

In Earl-Hubbard’s case, Mohr v. Grant, a television reporter in Spokane, Wash., heard about an ongoing criminal investigation of a local man with the mental capacity of a five-year-old child. The man typically visited local businesses and offered to clean their windows in exchange for candy. The television station eventually reported that the man was being prosecuted because of one such incident when the business owner called police, who charged the man with criminal trespass and harassment.

The business owner objected to the broadcasts immediately, calling them one-sided. He later brought a defamation suit against the television station, alleging the station omitted facts, creating a false impression of what happened. The story didn’t report that the local man had previously threatened the life of the business owner and his wife.

But the Washington Supreme Court held that the owner of the store did not meet his burden as to the falsity of the statements. It held that the omitted information would not have necessarily negated the asserted defamatory implication in its entirety.

It also held that follow-up stories helped tell the owner’s side of the story.

“Merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability,” the court said. The business owner failed to show “that the communication left a false impression that would be contradicted by the inclusion of omitted facts.”

Libel by omission is “a really troubling tort” because “what you find is that news organizations that had access to information, the court presumed that all that information got into [a reporter’s] head,” Earl-Hubbard said. “By choosing not to report a few facts, they allowed him to be sued for omitting information as a libel claim. The risk is that it starts to put courts in the role of news editors, and lets them decide what was appropriate to say and what was not to say.”

Zansberg said it’s hard to know what the implications of the Fourth Circuit’s decision will be on journalists there.

“From the court’s opinion, I know that it was [the journalist’s] testimony that she didn’t intend to create that [false] impression. The dissent points out that journalists . . . are required to edit and omit facts all the time. So, I guess it’s probably less a concern for [reporters] as it is for editors to try to be extra vigilant about what type of implications [are being created]. This is difficult for editors, because they don’t know what information has been omitted.”