...
Finally, I'll take SBH and his knowledge on the subject of journalism, long before I'll take OCF's knowledge on anything that he didn't get out of a Civil War book.
Keep in mind that the law is not the same in every state. Note this web page, which gives a list of states where the Fair Report Privilege is recognized:
http://www.dmlp.org/legal-guide/fair-report-privilege The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source.
...Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. ...
Note that in those states that do not recognize it, the press still exists, so those that warned above that newspapers would all be bankrupt without it are wrong. Presumably they are just more careful.
Note this further information from the Digital Media Law website:
Examples where the fair report privilege would probably apply include:
Statements made by a judge in a trial
A speech made by a city council member during a council meeting
Testimony during a trial
Facts recorded in a final police report
Analysis reported in an Environmental Protection Agency survey
The privilege would probably not apply to:
Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
Gossip overheard on the courthouse steps
Offhand remarks made by a government official in a private setting
Statements made in a draft government report
Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.
Further, each state defines the scope of the privilege differently.
Where does a statement by a prosecutor, that is not included in the record fall? Is it more like a statement from the judge? Or more like a statement by the arresting officer? Or is it an offhand remark in a private setting? This case seems to fall into a gray area, at least in terms of general law. That said, lets look at the summary of Ohio law:
http://www.dmlp.org/legal-guide/ohio-defamation-law Ohio recognizes the fair report privilege, which is codified in two statutes, Ohio Rev. Code §§ 2317.04 and 2317.05.
Ohio Rev. Code § 2317.04 provides a privilege to accurate reports of state and local legislative and executive proceedings, as well reports reproducing the contents of any bill, ordinance, report, resolution, bulletin, notice, petition, or other document presented, filed, or issued in such a proceeding. A plaintiff can defeat this privilege by showing that the defendant acted with actual malice.
Ohio Rev. Code § 2317.05 provides a privilege to accurate reports of the return of any indictment, the issuance of a warrant, the arrest of any person accused of a crime, and the filing of any affidavit, pleading, or other document in a civil or criminal court case, as well as fair an impartial reports of the contents of these documents. A plaintiff can defeat this privilege by showing that the defendant (1) acted with actual malice, (2) failed to publish a reasonable written explanation or contradiction offered by the plaintiff, or (3) failed to publish, upon request of the plaintiff, the subsequent determination the lawsuit or case.
To take advantage of the fair report privilege, you do not need to quote the official record verbatim, but it must be a substantially accurate report, which means the report conveys the essence of the official record.
The prosecutor's statement would not be the "contents of any bill, ordinance, report, resolution, bulletin, notice, petition, or other document presented, filed, or issued in such a proceeding", nor would it be "the return of any indictment, the issuance of a warrant, the arrest of any person accused of a crime, and the filing of any affidavit, pleading, or other document in a civil or criminal court case". Thus it would seem to have to be an "impartial report of the contents of these documents", but I'm not sure that applies, since the prosecutors statements are not supported by the final documents of the case.
In any case, if I read it correctly, it seems to say that the newspaper has a duty to either "publish a reasonable written explanation or contradiction offered by the plaintiff" or publish "the subsequent determination the lawsuit or case." Either seems reasonable enough.
Last Edited: 7/23/2017 1:28:15 AM by L.C.