Media Organizations (Correctly) Worry That Rolling Stone Verdict Will Make Saying Sory Actionable

We didn't cover anything about the whole bogus story that Rolling Stone published last year about campus rape at UVA, which it later had to retract and take down. The whole thing was something of a clusterfuck, but not directly relevant to what we write about here. Eventually, it led to a defamation case filed by UVA's former associate dean, Nicole Eramo, against Rolling Stone, which was pretty interesting and resulted in a somewhat surprising loss for Rolling Stone. As we've discussed plenty of times, winning a defamation lawsuit -- especially against a public figure -- is particularly difficult (and that's a good thing). The actions need to be particularly egregious. And, in this case, the jury decided that they were. I'm certainly not going to defend Rolling Stone and its ridiculously shoddy reporting, which seemed to be confirmation bias piled upon confirmation bias.

But as some quickly pointed out, the verdict could have some serious chilling effects on media organizations -- in part because the jury found that the originally updated version of the story -- as the details reported began to crumble -- and which included an editor's note apologizing for problems with the original reporting, was viewed by the jury as a republication, and, even worse, it was that "republication" that met the "actual malice" standpoint needed to get over the defamation bar.

This is problematic.

It was the original reporting that was bad. The apology was good. Yet, the way the jury ruled, Rolling Stone would have been better off not apologizing for the error and not adding the editor's note to the story. That seems crazy. And thus, the Reporters Committee for Freedom of the Press (RCFP) and eight big media organizations (including the Washington Post, who was the publication that first exposed many of the problems in the Rolling Stone article) have filed an amicus brief with the court raising this issue (found via Eriq Gardner's excellent reporting at THREsq).

The argument is pretty straightforward. Creating a chilling effect on correcting stories and apologizing for errors is really, really bad.

Journalists have always had a commitment to ethical standards by assuming responsibilityfor their errors and setting the record straight. Being accountable to the public by updatingstories as needed is one way to reassure readers that the news media are dedicated to accuracy intheir reporting. As proof of the power of corrections and their contribution to reputablejournalism, a 1998 study conducted by the American Society of Newspaper Editors found that 63percent of newspaper readers "'feel better' about the quality of the news coverage" when thereare corrections....

[....]

In the case of news published on the Internet, the news media can more quickly andmeaningfully provide more in-depth modifications and updates than in the traditional printcontext. An explanation of a mistake can be made at any time in the same place as the originalarticle, where the same audience is more likely to see it. In addition, "[d]igital publishing hasmade it possible for editors not only to scrub or enhance stories as they develop but also to pullback the curtain - to make sure readers see and understand what they've done."...

[....]

Numerous high-profile examples show that the tradition that has developed in onlinejournalism is to leave a controversial story on the website while noting the problems with it.Adding an explanation by no means indicates that the publishers are supporting, reaffirming, orrepublishing the facts of the original story. On the contrary, they are preserving the record ofwhat was previously written while adding greater context

Indeed, this is the same policy we take at Techdirt. In the cases that we've made serious mistakes in our reporting, we leave up the original, but with a prominent correction and apology. That shouldn't be seen as a "republication" and an admission that the republication was malicious. That's clearly a bogus interpretation and very problematic. It's much, much worse to simply disappear an article with errors or problematic reporting, because that's hiding things, rather than being more open and transparent. We make fun of the publications that simply disappear such stories.

Because correcting false statements in an article, even short of retracting the entire article,will often be considered a mitigation of damages or evidence of lack of malice, responding tonew information and posting updates are clearly encouraged by courts and seen as a positive act.Allowing the attachment of an editor's note to the original article, which backs away from claimsin that publication, to constitute a "republication" is thus inconsistent with clear public policyinterests in encouraging greater explanation as stories develop.

Hopefully the court reconsiders this issue -- otherwise, one hopes that an appeals court, or even the Supreme Court will take up this issue on appeal down the road. Publications shouldn't be punished for admitting to mistakes. That would seem to go against all common sense.

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