Are talebearers really as bad as talemakers? Rethinking republisher liability in an information age.

Author:Del Medico, Jennifer L.
Position::New York
 
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INTRODUCTION

It was a spectacle that "produced without question some of the most bizarre testimony," a district court judge commented in hindsight. (1) The 1982 Pulitzer divorce trial featured tales of sex, drugs, and seances that were splashed throughout magazines and newspapers across the country. (2) Many of the scandalous details involved Janice Nelson, the woman who served as Mrs. Pulitzer's marriage counselor and psychic. (3) Nelson testified on behalf of Mr. Pulitzer because she felt that Mrs. Pulitzer should not have custody of the couple's children. (4)

While the high-profile Pulitzer divorce produced juicy fodder for news reports, the media's real gain from the case came five years after the divorce trial when Nelson sued several media organizations for defamation. (5) During the divorce trial, the Associated Press erroneously reported that Nelson conducted seances in the Pulitzer home where ten to fifteen people surrounded Roxanne Pulitzer, who was in bed with a trumpet and a black cape. (6) Both The Miami Herald (7) and The New York Post republished this erroneous dispatch. (8) Knight-Ridder wire service sent out a similar story over its news wire that The Washington Post republished. (9) Newsweek reported the same story based on information from various newspaper and wire service reports. (10) After the publications of these statements, the Associated Press issued a retraction which stated that "[i]n a Pulitzer deposition made available Thursday, [Mr. Pulitzer] describes seances--unrelated to Ms. Nelson--that Mrs. Pulitzer conducted in their home." (11)

The court granted summary judgment in favor of the republishers (12) based on a "powerful, but often neglected libel defense" called the "wire service defense." (13) This defense allows the media to republish news without liability for defamation if the information passed over a news wire and the subsequent publisher did not know or have reason to know that the material was defamatory. (14) In certain circumstances, this privilege exempts the media from the strict common law rule that imputes independent liability to third parties who republish libelous statements. (15) Whether the defamed individual is a public or private figure is not a factor in determining whether the wire service defense is applicable. (16) Therefore, the media can potentially get the case dismissed on summary judgment without engaging in litigation concerning whether the defamed is a public or private figure.

Over time, spreading the news has become more of a cooperative endeavor. In 1848, the Associated Press was founded as a news cooperative for six New York papers. (17) Today, the Associated Press serves 1700 newspapers and 5000 radio and television stations around the country. (18) More than thirty other news wires, from institutions like United Press International to the two-year-old Women's Enews, relay news to media outlets around the country. (19) Journalists frequently rely on these services for facts or quotes to incorporate into original stories and publications often use entire wire service stories as a replacement for self-generated copy. (20)

The very existence--and recent proliferation and expansion--of the wire service privilege illustrates that traditional republication liability does not allow news organizations to function effectively in a society that demands rapid news dissemination. (21) Today, twenty-one jurisdictions currently recognize the seventy-year-old defense, the majority of them electing to do so within the last twenty years. (22) In the past decade, eight jurisdictions have approved the wire service privilege. (23)

The acceptance of the defense suggests that the strict common law rule burdening republishers with potential liability should be abolished if there is no showing of actual knowledge that the material was defamatory. Thus, the "actual malice" standard articulated in New York Times v. Sullivan, which applies to public figures, should apply to all individuals in cases involving republishers. (24) The Sullivan Court defined acting with "actual malice" as publishing material "with knowledge that it was false or with reckless disregard of whether it was false or not." (25) This Comment argues that the standard established by Sullivan is the proper standard to impose on republishers who publish material noting that it originates from another source, regardless of whether the plaintiff is a public or private figure.

Whether republishers can escape liability for defamation should not turn on the technology involved. In its traditional form, the defense is only applicable when a wire service is involved in the news distribution. (26) Without the wire service privilege, a news organization can face liability for defamation if it reports verbatim what has appeared in another publication, even if the item is attributed. (27) It is time to re-evaluate the old adage in libel law that "[t]alebearers are as bad as talemakers." (28)

Part I of this comment chronicles the history and expansion of the wire service defense since it first appeared in a 1933 decision. (29) Additionally, Part I posits that the early development of the wire service defense was likely a tool to protect technological developments that improved news distribution over the wire. (30) Part I also discusses the reverse wire service defense, which developed more than sixty years after the first articulation of the defense. (31)

Part II will examine New York's broader approach to evaluating whether a republisher should be held liable, which displaces the need for a privilege like the wire service defense. (32) Under New York law, in matters involving public figures and matters of public concern involving private figures, republishers must act in a grossly irresponsible manner in order to be held liable. (33) Under this standard, the court must determine whether the initial publisher was a reliable source and whether the republisher acted as would a prudent journalist. (34)

Finally, Part III concludes that the common law rule holding republishers liable for defamation should be replaced with a presumption in favor of republication. (35) This presumption would allow republication of news without liability when a republisher meets certain criteria, regardless of the type of medium involved, unless the republisher acted with actual malice. (36) This Part also points out problems with both the traditional wire service defense and New York's broader approach. (37) Part III also discusses how Congress has limited traditional republication liability for Internet service providers, which illustrates that republisher liability is unsuitable in modern times. (38) This change supports the important goal of ensuring that speech is not chilled, a core First Amendment value, and that news is not kept from the public. (39) In addition, this Part will suggest that the traditional rule barring the original publisher from being heId liable for third party publication of the original publisher's statements should be altered to account for truly harmed plaintiffs. (40)

  1. THE DEVELOPMENT OF THE WIRE SERVICE DEFENSE

    Part I examines Layne v. Tribune Co., the first case to articulate the wire service defense, and the policy reasons for departing from the strict common law rule that republishers are liable for defamation regardless of whether they attributed the source of the material. (41) This Part also hypothesizes that the court's holding was partly in response to changing technology that made wire services more efficient. (42) In addition, this Part discusses how courts have expanded the defense, applying it to news organizations that go beyond acting like Layne's "local screen." (43) For an understanding of why the media would benefit from the defense, it is necessary to examine the elements of defamation and republisher liability. (44)

    1. The Elements of Defamation

      The elements of the defamation tort vary from case to case depending on several factors: the identities of the parties, the character of the alleged defamatory statement, and the law of the jurisdiction applied to the action. (45) The general elements are, however: "(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." (46)

      The wire service privilege is a powerful tool for the media in battling some defamation lawsuits because of the continued existence of the rule that secondary publishers are subject to the same liability as the original publisher. (47) The common law of libel has long heId that a publisher adopts the defamatory comment as its own through republication. (48) This rule, which aims to protect reputations, (49) excludes those who are involved solely in the delivery or transmission of the defamatory material, such as a telegraph company putting through a call. (50) Thus, absent a privilege, a newspaper is subject to liability if it republishes a defamatory statement, "although it names the author and another newspaper in which the statement first appeared." (51) Under the wire service privilege, however, the media defendant has the potential to prevail at the early summary judgment phase, (52) thereby destroying the plaintiff's cause of action. (53)

    2. A Privilege for Republishers: Layne v. Tribune Co.

      Layne v. Tribune Co. (54) first articulated the "wire service defense" and its rationale, although the terminology was not coined until years later. (55) Layne, a Congressman's secretary, sued The Tampa Morning Tribune after the paper published two wire stories that said he was indicted for possession of alcohol. (56) The court heId that when a newspaper republishes a wire story from a "generally recognized reliable source of daily news," there is no cause...

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