Defamation and the Fair Report Privilege

Defamation Law

What is defamation?

“Defamation” describes any statement that harms a person’s reputation to the the extent that it lowers the person in the eyes of the community. You’ll also hear this called “libel,” which is written defamation, and “slander,” which is spoken defamation.

Defamation is not a crime, but it is a “tort” (a civil wrong, rather than a criminal wrong), meaning someone could sue you if they can prove you defamed them.

If you put something defamatory in your notes both you and City Bureau could be exposed to a lawsuit.

To establish a claim for defamation the accuser must show that the defendant published a statement about the plaintiff to a third party that was false, unprivileged, and damaged the plaintiff’s reputation.

Let’s break that down.

  • Published to a third party: this definition is very broad, and includes just telling another person something in conversation.
  • “About the plaintiff” must also apply to a specific individual or individuals and not a general group or category. Broad statements (ex. “all journalists are hacks” don’t qualify”)
  • False: the statement must be provably false. Opinions, even mean ones, do not count as defamation because they can’t be proven false.
  • Damaging: the plaintiff (the person suing) must show that they suffered a harm because the statement was published.
  • Unprivileged: the statement can’t be exempted from defamation under a separate statute or court ruling. The Fair Report Privilege described below is one such privilege.

A higher standard for public figures

If the person suing is a public official or public figure there is one more test: they must prove that the publisher knew that the statement was false or acted with reckless disregard for whether it was true or false. (This is called “actual malice,” though the term is deceptive—it doesn’t have to do with malicious intent, but knowledge of falsehood.)

The Fair Report Privilege

The Fair Report Privilege is a legal precedent that protects accurate reports of official proceedings from defamation suits. These reports are privileged because they are the public’s window to the proceedings.

In Illinois

In Illinois, the Fair Report Privilege shields reporters and publishers from liability for defamation where two requirements are met: 1) the report is of an official proceeding and 2) the report is complete and accurate or a fair abridgment of the official proceeding.

“Official proceedings” include court proceedings and government meetings. A “fair abridgment” means that the report must convey to readers a substantially correct amount, in other words, the report may not omit, add or charge anything in such a way as to to convey an erroneous or defamatory impression. This does not mean you must include everything that happened—“abridging” is fine. It does mean that your summary should not be selective—the abridgement must be accurate and “fair.”

Illinois courts have held that minor mistakes, especially those related to technical knowledge, do not invalidate the fair report privilege as long as the report is a substantially correct account of the proceeding. Nevertheless, it is important for Documenters’ notes to be as accurate as possible, so please flag anything you found confusing.

In Michigan

Michigan’s Fair Report Privilege is even broader than Illinois’, covering anything that is “a fair and true report” about “a public and official proceeding,” “matters of public record,” an “act or action of a public body,” or a government notice or announcement. Courts have ruled that a report is “fair and true” if the “gist” is substantially true.

You should make sure not to exclude substantially important information from your report in order to ensure that it qualifies as “fair and “true.”

Takeaways

  • To prove defamation the accuser must show that the defendant published a statement about the plaintiff to a third party that was false, unprivileged, and damaged the plaintiff’s reputation. For public figures, the accuser must also show that the defendant knew the statement was false, or didn’t care if it was true or false.
  • As long as you are covering an official proceeding and your report is substantially accurate, your published notes are covered under the Fair Report Privilege and should be protected from defamation claims. Be careful not to omit any important information in your notes in order to ensure that they meet the standards of the Fair Report Privilege.

Further Reading