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The Impact of Libel Suits on Journalists' Behavior
CHEN XIAOYAN(媒体研究网专稿,2004年5月2日)
Abstract
In recent years, with the increase of libel suits against journalists, there
is great concern that libel suits and threatened libel suits may "chill"
journalists, inhibit them from further aggressive reporting on controversial
issues.
In this paper, interviews and web survey were conducted among journalists
who had experienced libel suits or being threatened with libel suits. It is
found that after libel suits or being threatened with libel suits, most of
the journalists will make some changes to their professional practice. But
seldom did they indicate that they would stop pursuing the story that had
brought on their legal trouble. The experience of being sued or threatened
by libel suit actually acted as an additional incentive for appropriate professional
practice, greater ethical sensitivity and greater awareness of legal requirements.
Acknowledgement
I would like to thank Dr. Kavita for her lecture on communication research.
Her lecture makes the complicated, scaring methodology simple, and enabled
me to conduct the study. I am grateful to all the Chinese journalists who
assisted me kindly by sparing the time for interview and fill the questionnaire
online.
Contents
Introduction ……………………………………………………….......1
Review of Literature…………………………………………………..3
Hypotheses…………………………………………………………….6
Some Conceptual Definitions………………………………………….6
Method…………………………………………………………………7
Results………………………………………………………………….8
Discussion and Conclusion……………………………………………14
Reference………………………………………………………………16
The Impact of Libel Suits on Journalists' Behavior
Introduction
Libel law is meant to strike a balance between the protection of reputation
and the freedom of speech. However, maintaining the proper equilibrium of
the two is very difficulty, as more and more powerful and wealthy people do
not hesitant to bring libel suits to unpopular speech and commercial driven
and market oriented media are less inclined to fight against potentially expensive
libel suits (Gillmor, 1992，Londin, & Dill,1993), there is great concern
that libel suits or threatened libel suits against media and journalists may
impose a chilling effect on journalists and free speech.
While in China, the situation is more complicated.
On the one hand, media have long been regarded as mouthpiece of the Party
and government, and are often used as tools by the Party or government to
attack the opponent. Criticism directed at the media was regarded as an attempt
to challenge the leadership of the Party and government, which, was unthinkable
for ordinary people (Hao, & Zhang, 1995). Thus, media maintain a rather
high status in the society and tend to impart greater adverse effect on people's
reputation with defamatory reporting. For example, in 1988, a reporting in
the People's Daily falsely accused a woman in XinJiang Province was litigious
and incompetent with her job, as the newspaper is the Party's organ, the woman
immediately lost her job and could not find another job during all the 9 years
in her libel litigation with the newspaper.
Given media's special influence, some academics believe that "there does
not exist at all the problem to determine which is the more important rights
between these two. Those viewpoints about freedom of expression taking precedence
against protection of one's reputation are just simply unacceptable. (Zhang,
& Kan, 1997, p14)" In their viewpoint, the increased libel suits
are caused by media's arrogance, insensitivity and sensationalism, so that
media should be more careful in their reporting and bear their social responsibilities
(Zhang, 2002).
On the other hand, though freedom of expression and the protection of individual's
reputation are both codified in Chinese Constitution, the Constitution is
not applicable, and the protection of reputation is also under the civil law
protection, the courts are tend to favor the protection of reputation (Chen,
2003).As media have gradually become a group of commercial organizations that
exist for profits as any other commercial enterprises ((Zhao,1998; Cao, 1999;
Ouyang, 2003)),they are increasingly less inclined to fight potentially expensive
libel actions, especially when most of the time, media lose their cases (Chen,
2003), undoubtedly "a wave of suing the reporters" may have dramatic
impact on Chinese journalists and further on the exercise of freedom of speech
(Wei, 1994).
Therefore, the study is to find out whether there is a chilling effect resulting
from actual or threatened libel suits, and whether these libel suits or threatened
libel suits in turn influence journalists' further decision-making in their
professional practice. As libel's chilling effect often undermines a journalist's
subsequent courage to pursue controversial issues or to criticize public figures,
if the journalists were chilled, the impact of libel suits may be negative,
journalists are likely to be overcautious in their further report or let potential
libel stories go unreported; If the chilling effect is less, the impact of
libel suits can bring kind of positive results, such as the journalists may
improve their ethical standards, be more sophisticated in their professional
writing and newsgathering skills, and be more conscious about law abiding.
Review of Literature
In late 1970s, social science studies were used in legal area to exam the
outcome of litigation. Though no study directly addressed the impact of libel
suits on journalists' behavior, a handful of studies which have examined the
impact of lawsuits on professional practices or focused on the chilling effect
of libel suits did address relevant issues to this study.
Studies on the relations of lawsuits and professional practices have found
that professionals in corporations are guided more by their professional values
than by expected legal consequences (Makkei, & Braithwaite, 1994), the
impact of even prominent court decisions is often minimal (Wiley, 1981).
In a survey of 350 licensed psychologists in the state of Ohio, the United
States.Wilbert and Fulero (1988) found out that the threat of malpractice
litigation against psychologists did not impose much overdeterrence on the
profession; rather, litigation could be viewed as an impetus for professionals
to improve their ethical practice.
In another study about the impact of lawsuits on professional practice, Giverber,
Bowers and Blitch (1984) surveyed 2875 therapists nationwide in American to
investigate the impact of a specific cases on therapists. In Tarasoff v. Regents
of the University of California, the California Supreme Court ruled that when
a third party is threatened by a psychotherapist's patient, the psychotherapist
also should shoulder legal liability. Giverber, Bowers and Blitch assumed
that to hold a therapist liable for those physical well-being is threatened
by the therapist's patient might have a negative impact on therapeutic practice.
However, in their study, they discovered that most therapists were not discouraged
by treatment of dangerous patients or in disagreement with the court's ruling.
As journalism is highly professional, the studies may suggest that litigation
experience may also improve journalists' professional ethics and practices.
To exam the impact of lawsuits on journalist' professional life, Voakes (1999)
interviewed 42 journalists who had been sued for invasion of privacy between
1990 and1995 in the United States. In his sample, media defendants won 89.8%
of the cases, while the plaintiff chance of winning is only 5.1% and another
5.1% cases were settled out of court. After contacted the journalists whose
work brought out the litigation or who seemed to have been closest to decision-making
related to each cases in 1996, Voakes also found out that negative impact
on journalists are less as most of the journalists expressed they would not
stop pursuing the same topic.
Studies on libel suits shed different light on the lawsuit impact. In Iowa
Libel Research Project, Wissler, Bezanson, Cranberg, Soloski, & Murchison
(1992) conducted interviews with libel plaintiffs to investigation their motives
of litigation and their satisfaction. Though they only focused on plaintiffs'
suing behavior, the discovery that plaintiffs often feel of "win by suing"
can suggest there may be not so comfortable feeling shared by media defendants.
Barendt, Lusgarten, Norris and Stephenson (1997) studied the impact of libel
law on media in Great Britain. They dealt separately with national newspapers,
regional newspapers, broadcasting, book publishers and magazines, gathered
data through questionnaires and interviews with editors, lawyers, reporters,
media publishers and producers. In the study, they found out that the cost
of litigation do impose a chilling effect on media and journalists would refrain
from the investigation of likely controversial topic in the long run and modify
or withhold their specific reporting in the short run.
In China, though no empirical study on the relationship of the libel suits
and journalists professional behavior has been conducted, a recent study about
the current situation about media defendants in libel cases do address great
relevance on this study.
Professor Chen (2003) conducted a content analysis of a total of 132 libel
cases against media or journalists from 1987 to 2001.He collected his samples
from the database of Beijing Legal Information Consulting Company, China National
Laws and Statutes CD-Rom Database and the Internet and newspaper publications.
In his study, he found that most of the time, media lost their cases and had
to pay a large sum of money. In general, the chance of media losing their
cases was 69.23%. If the plaintiff is a public figure or a government official,
the chance of media losing their cases is much higher, 71.68% and 75.68%.
During these years, the damage award is becoming higher and higher. Before
1998, the median damages awarded to plaintiffs were 1,100, while in 2001,
damages award increased to 20,000.
Hypotheses
Based on the above studies, lawsuits and threatened lawsuits will have more
or less impact upon the defendant. In term of libel suits, the studies in
American and Britain found that chilling effect did exist and was likely to
deter journalists from their further reporting. Given in those studies, most
of the time journalists prevailed in court, in IOWA study, Wissler et al.
(1992) found that media defendant prevailed 80 to 90 percent of the cases,
in Voakes' (1999) study, 90% media defendants prevailed, while in China, most
of the time journalists lose their cases, in Chen's (2003) study, media defendants
only prevailed 30.77% . Hence the hypotheses to be tested are:
H1: Journalists will report a change of behavior as a result of libel suits
or threatened libel suits.
H2: Journalists will be overly cautious about further similar reporting, or
shun from potentially troublemaking topics.
Some Conceptual Definition
Change of Behavior: In this study, changes of journalists' behavior were defined
as professional changes, legalistic changes and psychological changes. Professional
changes were changes in professional practice, including heightened sensitivity
of the techniques and ethics needed in news reporting and news gathering.
Legalistic Changes were changes in legal awareness and legal practice. In
this case, journalists may try to learn related laws and regulations to avoid
unnecessary legal disputes and when there is dispute, they will try to seek
legal advice from legal professionals. Psychological changes were changes
due to psychological impact from lawsuit. Journalists may be overly cautious
about further similar reporting, or shun from potentially troublemaking topics.
Psychological changes were caused by a chilling effect from libel suits.
Journalists: reporters, correspondents and editors.
Method
Web survey and telephone interviews and interviews via MSN messenger were
used to test the hypotheses.
Telephone interviews and interviews via MSN were used to get more detailed
and comprehensive information. Snowball technique was used to get the 15 interviewees
who has been experienced at least one libel suit or been threatened once with
libel suit. Of the 15 respondents, 5 were contacted through a telephone. The
other 10 were interviewed via MSN messenger. Through MSN messenger's chat
window and its camera function, the online interview goes quite like face-to-face
interview, which gives more interaction between interviewer and interviewee,
and also is easy to monitor. Of course it saves money.
In order to capture more spontaneous and ingenuous response, open ended questions
were designed to give the respondents more freedom to show their own view
point or experience about what caused the libel suit (threatened suit) and
the impact of the libel suit or threatened libel suit on them. Interviewees
were asked to describe their experience of libel suits or threatened libel
suits, explain the cause of the libel suits or threatened libel suits; changes
they had made after the suits or threatened suits, and what would they do
when they meet the same dilemma in the future.
Web survey is a commonly used method to reach an uncertain population. As
journalists are heavy online goers and http://www.xici.net/main.asp?board=6775
is the largest and most popular bullet board for Chinese journalists. It has
2779 registered members and covers journalists all over China. Questions about
the reaction of libel suits and threatened libel suits and perceived behavior
changes, etc. (Chinese version) were posted on it from March 20 to April5,
2004.
In order to avoid repetitive respondents, technical barrier was used to ban
a second click from the same IP address and computer within one month. And
a total of 31 respondents were got till April 5, 2004.
Since it is hard to monitor the process of the web survey, web survey was
designed as a supplementary method to help to verify the interview and test
the hypotheses.
Results
Journalists' descriptions of the impact and changes of behavior
All the journalists interviewed felt some sting of the libel suit they experienced
or being threatened. Three of them mentioned serious concern about being sued
and threatened with libel suits.
A female reporter, who has worked 3 years in the Party newspaper at a small
city, when talked about her experience of involvement into libel cases, was
still with bitter complaint:
I don't think I did anything wrong, it was an investigative story and only
one sentence related to the police who threatened me with libel suits and
threatened me and my family privately. Those days I was scared, I even dared
not to go out at night. In the end my newspaper settled the case, offered
a retraction and I apologized. It was very stressful. After that I applied
to cover the beat of education, which is less controversial. To be frank,
I have always written the positive side ever since and very cautious about
any potentially troublemaking part. It wouldn't be worth that kind of stress
and trouble. I'll choose another story or withhold any controversial part.
Another 45 years old editor expressed the "chill" he felt:
I won the case, but it took me two and a half years. The facts were very clear,
but you just had to go through the whole process again and again. You could
not concentrate on anything else. You can prevail at the end, what about the
time and stress you have spent? Win or lose, it is the same; you'd better
not to be involved in it.
Interestingly even he won his case, he seems still be chilled by the lawsuit
because of the time cost and psychological impact from the marathon libel
suit.
One reporter, who once wrote a story about a worker got injured in his work
and got no compensation from his boss. As the whole story is coined by the
worker, the boss filed libel suit. Bribed by the boss, the worker denied he
provided the source. The reporter had to apologize to his false reporting
and made compensation for the boss. Still in indignation, he expressed that
he would think more than twice when confronted with riskful issues:
I was driven by my ambition to voice the powerless minority, and to restore
social justice. The society is a complex, only enthusiasm cannot help much.
Now I will check carefully and do more investigation. Most of the time I double
check my sources and carefully keep my notes, sometimes I ask for a signature.
If I cannot get a signature, I will let my editor make the final decision.
I do not want to shoulder all the responsibilities alone.
The rest of the 12 interviewees did not express such strong grudge. Anoher
reporter who criticized a local government institute won his case was very
optimistic and encouraged:
Good guys will be rewarded. I know what I am doing and I always hold my stand.
I have done nothing wrong. They just want to intimidate me and evade public
scrutiny. Yes, it cost me a lot of time, and energy to fight back. You should
not be scared by those people, they did wrong, and they should be feared.
Even for those lost their cases, most of them seemed feeling less chilling
effect. They admitted that their libel suits or threatened libel suits were
caused by careless reports.6 of them (40%) showed understanding and sympathy
for the aggrieved parts reaction. "If I were them, I will sue. Be exposed
in newspaper is quite different, you life will be ruined," said one editor.
In their behavior changes, 10 of them (10 out of 15, 67%) mentioned they would
be more careful in their further reporting and editing, checking the news
sources more carefully and showing respect to the parts involved in their
stories to guarantee that the reporting was not false and did not cause unnecessary
harm to others' reputation. 7 of them (46%) especially mentioned a sensitivity
to learn related laws and regulations, or to seek legal advice:
"When I got the chance to continue my postgraduate study, the first course
I chose is media law. I think it is better for every journalist to have some
knowledge about the legal issues. If you know what it right or wrong, it will
be easy."
"When sometimes I am not sure about a topic, I will seek advice from
legal professionals. Not to avoid the report, but to find a better way to
conduct it. To protect others and protect yourself, legally."
Web survey generally reinforced the results from interviews.
Question: If you have experienced libel suit or been threatened with libel
suit, you will:（as many as apply）
A, pay attention to related laws and regulations, seek legal advice from legal
professionals.
B, improve your professional skills in news reporting and news gathering and
learn from experienced colleagues.
C, refuse to touch the same topic again.
D, do your best to shun the same topic, or let some else do the topic.
E, be very cautious, keeping notes, asking for a signature, and better let
the editor make the decision.
F, not change, do the report as usual.
A vast majority of the 31 respondents reported impact from libel suit or threatened
libel suit and admitted changes of their further professional behavior. Only
2 of the 31 respondents reported they will not change their behavior. 67.74%
of the 31 respondents indicated a legalistic change, followed (64.12%) by
the improvement of their professional skills. Changes due to a chilling effect
are less. No one reported a totally avoidance the same topic. Only 45.16%
reported overly cautious behavior changes, and 19.35 would choose to shun
the responsibility.
In another related question, the perceived psychological impact on journalists
is less.
Question: If your were faced with a libel suit or threatened libel suit, your
first reaction is :
A, unprepared, very nervous, fidget and cannot concentrate on your work.
B.a little uneasy, and will check the report again; consult colleagues, lawyers,
etc. Life and work will not be influenced much.
C. indifference. Regard it as an inevitable part of journalistic work.
D. is confident with your report, not feared of litigation.
Most of the respondent reported the perceived sting from libel suits or threatened
libel suits, but only 4 of the 31 respondents reported nervousness or overly
worrisome. Most of them, 18 respondents, perceived they would handle properly.
And the result of the next question does give evidence to their active dispute
solving attitude. That is to say, when the reports go wrong, they seem more
willing to acknowledge their mistakes and shoulder responsibilities.
Question: If you have already know your report infringed some one's reputation,
you will :(as many as apply)
A, extend an apology, explain why the story goes like that, ask for forgiveness.
B, offer an extraction or correction in your media, if necessary, run some
remedial reporting.
C, ask your friends or a third party to mediate, hoping for forgiveness.
D, report to your editor or the one in charge of you, seek legal advice from
a lawyer.
E, wish the aggrieved part would not discover or take it seriously.
F, take no action.
In the study, 55.26% of the 31 respondents are willing to extend an apology.
The next preferable way is to consult legal professionals for advice, at 50%;
extraction and correction at 42.11%. Only a small number of people, 13.16%
of the 31 respondents would take a passive step in the hope to evade responsibility.
No one mentioned they would pay no attention to the falsehood. The results
are in consistence with the interview. All interviewees expressed willingness
to offer an apology for false, defamatory reporting.
Discussion and Conclusion
Overall, the data proved the first hypothesis but turn up to the opposite
of the second hypothesis. Most journalists seem to have a reasonable perception
of the possible consequences of their reporting. They have the sense of the
importance of the protection of other people's reputation during their professional
work. Seldom did they indicate that they would stop pursuing the story that
had brought on their legal trouble. They objectively assess the cause of the
libel suits, respond actively to settle disputes, and improve future professional
practice. The experience of being sued or threatened by libel suit actually
acted as an additional incentive for appropriate professional practice, greater
ethical sensitivity and greater awareness of legal requirements.
The paucity of chilling effect found must be encouraging. But journalists'
report of great concern about cost of time, energy and suffering from uncertainty
of libel suits offer some implications for judicial practice, media management
as well as education.
Sometimes, libel litigation may last a long time, according to Wei (2000),
an average libel suit lasts 3 or 4 years. Given the uncertainty during these
years, it will be a great burden for the journalist involved in. It may be
more economical to simplify some process of the litigation or encourage some
alternative out of court disputes resolution.
To media managers , it is possible to offer help to reassure journalists by
introducing actively discussion about lawsuits impact, recommending basic
guidelines to avoid similar disputes and raise levels of profession more generally.
To educators, journalists' responsibilities, legal rights, legal limits as
well as media freedom should be touched altogether to get potential journalists
well prepared.
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