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Qualified privilege: A defense for the public relations function
Public Relations Review 32 (2006) 377–385
Qualified privilege: A defense for the public relations function Frank Walsh ∗ School of Journalism and Mass Communication, Texas State University at San Marcos, 601 University Drive, San Marcos, TX 78666-4616, USA Received 18 May 2006; received in revised form 28 August 2006; accepted 1 September 2006
Abstract Technology continues to challenge the public relations practitioner to find ways to inform key constituents. The new technology has given rise to the “new journalism” that includes a declining traditional media and exploding internet media filled with websites and bloggers. The question posed by this research asks: Does the public relations practitioner inherit the same protection offered by “qualified privilege” that is most often associated with the traditional “press” or “reporter?” The research lays a foundation with an examination of defamation and the defense of qualified privilege. The research concludes that if information gathered by the public relations practitioner meets the “intent” and “content” tests, the information qualifies as news. Passing the “news” test, the defense of “qualified privilege” also attaches to the public relations practitioner. © 2006 Elsevier Inc. All rights reserved. Keywords: Defamation; Defamation defenses; Qualified privilege; Public relations and news; Definition of news
1. Introduction The legal concept of privilege acts as the referee in what can sometimes be contentious communication debates with a variety of defamatory accusations. Absolute privilege and its attendant cousin, qualified privilege, set the communication rules as individuals and organizations seek to redress grievances. Following these rules keeps communicators free from liability for what can be significant monetary damages. The communication professional acts as the fulcrum, balancing the information tightly held in the absolute privilege activity and the release of this same information to the general public while maintaining the defense of qualified privilege. As mass communication law developed, discussions of privilege referenced “the reporter” or “the press.” These references almost always had in mind the writers for traditional, institutional media: newspapers, magazines and later broadcast outlets. During the early years, the public relations function did not have a role in the libel dramas as they were decided by the courts. At the same time, the responsibility of the practitioner remained steady: to inform their constituents of information necessary for successful decision making. Some of the most important information that needed to be communicated came from activities generally considered protected by absolute privilege: legislative and judicial. Not knowing whether the courts would consider them as “reporters” and therefore protected by qualified privilege, practitioners had three choices: (1) depend on traditional outlets to inform their constituents (sometimes making the
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mistake of copying articles from traditional sources and circulating these; an act constituting republication and a new libel), (2) write their own materials, but being careful to leave out any material that might be considered libelous, or (3) unaware of the possible risk, went ahead and wrote reports including the libelous material. The case might be made that these techniques worked. No major case has gone through the courts deciding whether public relations practitioners are considered reporters and whether qualified privilege can be claimed by the public relations function (Hutchinson v. Proximire, 1998). At the same time the media landscape changed. While there are fewer and fewer newspapers, and these are owned by media conglomerates, traditional journalism has given way to the new journalism. Newsweek described new journalism this way: “Just the facts won’t do anymore. Today’s savviest political tone-setters, from Webheads to columnists, comedians to ideologues, are the ones who use technology, entertainment, attitude and humor to deliver their take on the news—and sometimes to make it . . .. The News News is about cutting through the clutter, creating new channels for information and, in a lot of cases, getting a laugh—or a gasp” (Newsweek, 1999, Jan.18, 2). Since Newsweek’s description, “bloggers” have moved from the background to the forefront as gatherers and distributors of news. The public relations practitioner operates in this world of new journalism. The option of only informing constituents via traditional media died with the birth of the new journalism. Now, more than ever, the practitioner performs as the reporter, the direct communication link between an activity and the audience. Today this question is more relevant than ever: is a public relations practitioner a “reporter” under modern court decisions and does qualified privilege offer the same protection in covering absolute privilege activities? This paper addresses the question in several steps: (1) (2) (3) (4) (5) (6)
providing a summary overview of defamation, outlining the development of the qualified privilege of “interest of the publisher” and “common interest,” providing a short background in the development of the qualified privilege of “reports of public proceedings,” citing court cases that broaden the definition of “reporter,” citing court cases that look at communications other than traditional news tools, and suggesting guidelines to secure qualified privilege as a successful defense.
2. Overview of defamation Public relations practitioners are reporters to their constituents. As such, these reporters and the organizations they represent run the risk of defaming individuals, groups or organizations. Defamatory language can be included in employee newspapers, bulletins, posters as well as broadcasts, video tapes and CDs that provide “news” to these important audiences. The same is true for these same public relations tools used to inform members of an association or other groups. As with any reporter, the public relations practitioner’s professionalism includes a knowledge of libel as it specifically applies to the tools of public relations and a working knowledge of libel defenses. In general libel is communication that exposes a person or organization to hatred, ridicule, contempt, loss of esteem, humiliation, or damages one’s trade or profession. While these are extremely broad areas, one study covering a 40month period, reported that the large majority of complaints by plaintiffs were that they had been falsely accused of “crime, moral failings, and incompetence in trade or profession” (Franklin, American Bar Foundation Research Journal, 1980).Individuals are frequently the target of defamatory slings. The following words describing individuals have been held actionable: to call one “a liar” (Melton v. Bow, 1978), or “a scandalmonger” (Patton v. Cruce, 1904), “a drunkard” (Giles v. State, 1959), “a hypocrite” (Overstreet v. New Nonpareil Co., 1918), or “a hog” (Solverson v. Peterson, 1885) or to call one “heartless and neglectful of his family” (Brown v. DuFrey, 1956). Some political philosophies and affiliations when mapped onto an individual can be dangerous. For example, Chicago Attorney Elmer Gertz was falsely charged by the John Birch Society as being a “Leninist,” a “Communist-fronter,” and a member of the “Marxist League for Industrial Democracy.” The court found these words defamatory (Gertz v. Robert Welch, 1969). The potential for damaging a person’s way of earning a living is as endless as there are ways of earning a living. To say that a University was a “degree mill” (Laurence University v. State, 1971); that a contractor engaged in “unethical trade” (Greenbelt Co-op Pub Ass’n v. Breslelr, 1970); that an attorney was incompetent (Hahn v. Andrellow, 1974); that a corporation director embezzled (Weenig v. Wood, 1976) or accusing one of “shady ethics” (Nichols v. Bristow Pub. Co., 1957) all have been judged defamatory.
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Defamatory slings at organizations have pitted some of the world’s largest organizations against each other. In Microsoft Corporation v. Yokomama Telecom Corporation case, Microsoft used words such as “piracy” and “counterfeit” products in its action (Microsoft Corporation v. Yokohama Telecom Corporation, 1998). In the current on-going action that AMD has against Intel, AMD describes Intel as “engaging in worldwide coercion of customers” and that the choice and benefits of innovation “are being stolen away . . .” (AMD v. Intel, Delaware District Court, 2005). The cost of ignorance about libel can be costly. In addition to high legal fees, monetary damages can be extreme. Just a few damage awards are cited to catch the attention of the public relations practitioner: US$ 26.5 million (Pring v. Penthouse, 1983), US$ 5.5 million (Food Lion v. Capital Cities ABC, 1999), and US$ 3.05 million (Brown & Williamson Tobacco Corp. v. Jacobson, 1983). The major defenses for defamatory liability are truth, fair comment and criticism and privilege. The paper explores the defense of privilege. 3. Privilege as a defense against defamation Immunity from liability for defamatory communication protects two different sets of players: • the person or organization initiating the defamatory communication (interest of the publisher and common interest), and • the communicator who passes this defamatory communication onto others (reports of public proceedings). In general, privilege rests on the idea “that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. The interest thus favored may be one of the defendant himself, of a third person, or of the general public” (Prosser & Keeton on Torts, 5th ed., 1984). To define qualified privilege, Prosser and Keeton reach back to a statement by Baron Parke made in a 1834 case. According to Parke, a communication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned” (Prosser & Keeton). Interest of the publisher, common interest, communication to one who may act in the public interest and fair comment on matters of public concern are some of the basic communication interests that are protected by qualified privilege (Prosser & Keeton). While complementary, these interests are significantly different than the qualified privilege attached to “reports of public proceedings” most often associated with the media (Prosser & Keeton). For the public relations practitioner this combination of complementary qualified privilege interests provides a broad communication defense. For the purposes of this research qualified privilege is broken into two categories. • Interest of the publisher and common interests. • Reports of public proceedings. 4. Interest of the publisher and common interests Interest of the publisher is similar to self-defense or the defense of property. Qualified privilege attaches to communication that is defamatory for the protection or advancement of the defendant’s own legitimate interest (Haycox v. Dunn, 1958). While a broad variety of cases are cited giving examples of this interest, two are of particular importance: a defendant is protected by qualified privilege if the communication is “to protect against the mismanagement of a concern in which he has an interest” (McDougall v. Claridge, 1808) or “to protect his business against unethical competition” (Powell v. Young, 1928). In common interest cases, the communicator and the recipient have a common financial interest such as when business dealings are shared or when the parties belong to the same group where officers, agents or employees of a business organization communicate with shareholders (Baker v. Clark, 1920), or with other employees or branch offices (Miley v. Foster, 1956) about the affairs of the organization itself. The privilege also attaches to non-financial groups such as professional societies (Mick v. American Dental Association, 1958), educational organizations (Clark v. McBaine, 1923) and labor unions (Ward v. Painters’ Local Union No. 300, 1953).
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Communication “abuse” forfeits the defense of qualified privilege in two areas: the defense does not attach “to the publication of irrelevant defamatory matter with no bearing upon the public or private interest which is entitled to protection” (Lathrop v. Sundberg, 1909); “nor does it include publication to any person other than those whose hearing of it is reasonably believed to be necessary or useful for the furtherance of that interest” (Ramsdell v. Pennsylvania R. Co., 1910). On the other hand, “any reasonable and appropriate method of publication may be adopted which fits the purpose of protecting the particular interest, according to Prosser and Keeton. As examples, they cite the dictation of a business letter to a stenographer (Mick v. American Dental Association, 1958) or the use of the telegraph where time is important (Nye v. Western Union Tel. Co., 1900). Applied to current public relations activities, “interest of the publisher” qualified privilege might well be applied to defamatory remarks made in a shareholder complaint or the current AMD v. Intel Corp. suit in which AMD claims unethical competition by Intel. “Common interest” qualified privilege includes communications with shareholders, employees, and association members as well as professional societies and labor unions. 5. Reports of public proceedings Common law recognized that specific activities and offices have partial or complete protection from libel. These settings have a unique quality according to common law: society has an overwhelming interest in protecting the speaker and encouraging unrestricted speech, even if the speech contained defamatory material (Prosser & Keeton). Within this protected robust debate, society has its best chance at arriving at an acceptable version of the truth. The common law carefully restricted this scope of absolute privilege to legislative proceedings, government executives, and participants in judicial proceedings and documents either included in these proceedings or that were an outcome of these proceedings. These general outlines of absolute privilege remain today; they are recognized at all levels of government and court systems. Qualified privilege, in general, states that if a publisher acts in good faith and reports accurately and fairly he need not consider the truth or falsity of the absolute privilege proceedings being reported. Basic rationale for this protection is the public’s interest in having the operations and deliberations of government institutions made public (Columbia Law Review, 1964). The Supreme Court has made this rationale clear: “Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government; the official records and documents open to the public are the basic data of government operations. Without the information provided by the press, most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally” (Cox Broadcasting Co. v. Cohn, 1974). A second rationale for the privilege concerns the public nature of the proceedings and documents covered by the privilege. The legal fiction is that the reporter serves as the public eye since any citizen could have attended and observed the proceedings. This legal fiction allows the information to penetrate further into the entire democratic base and therefore increase the robust debate (Medic v. Time, 1981). Unlike absolute privilege, qualified privilege for public proceedings carries some conditions before immunity from liability attaches. The critical condition is a “fair and accurate” summary of the proceedings or document (Brown & Williamson Tobacco Corp. v. Jacobson, 1983). The courts have offered some guidelines as to what constitutes “fair and accurate”. For qualified privilege to attach, a report does not need to be a verbatim transcript of the source (Time, Inc. v. Pape, 1971). Both news source and the consumer of information require summaries of proceedings or documents. News sources have extremely limited time and space restraints; consumers of information have limited time to give to the numerous activities they want to be informed about in any news time frame. Fairness also requires impartiality. A summary does not need to state all that occurred, but it must not present one aspect or point of view of the issues and exclude others (Hartzog v. United Press Ass’n, 1953). In the Hartzog case, a libel action was filed against a news association which allegedly reported, without foundation in fact, that the plaintiff had been forcibly ejected from a political party executive committee meeting by police. One of the reports stated: “Sumter City Police were posted in front of the meeting room after Publicity Chairman Gerald Hartzog of Charleston was forcibly ejected,” according to the ruling. The information stated did not give a complete summary of what had happened and in fact presented some false information. Accuracy refers to the factual correctness of the proceedings and documents included in the report, as stated in the Brown & Williamson Tobacco ruling. Accuracy attaches to the statements included in the proceedings or documents,
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not to the truth of these statements. Truth or falsity of statements made during the course of proceedings or included in documents is not relevant to the accuracy of their republication, according to the court. In a case by a tobacco corporation, the alleged defamatory information was included in a research report that ended up as part of a Federal Trade Commission investigation regarding an advertising strategy. The court did not go to the truth or falsity of the information but simply said: “. . . the fairness of the summary emerged so incontrovertibly from a comparison of the FTC staff report with the broadcast that no rational jury considering those documents, with the aid of whatever additional evidence plaintiff might introduce, could consider the summary unfair,” according to the Brown & Williamson Tobacco ruling. In fact, an attempt to correct a false statement or to remove a defamatory statement from a summary report may raise questions about the accuracy of the report. If trying to soften the impact of defamatory information in a report raises questions of accuracy, the report cannot overly emphasize defamatory material. One court put it this way: “If the newspaper article contained a ‘greater sting’ in terms of libelous impact than did the (source statement), it cannot be considered a fair and accurate summary” (Newell v. Fild Enters, 1980). According to this court, the greater sting in this case was in the report of a wrongful death in which the report “impeached plaintiff’s respect for human life. . ..” 6. Redefining the meaning of ‘press’ Freedom of speech and of the press took on a broader meaning as courts ruled on a variety of circumstances that did not always involve the customary news article in the traditional media. None of the court decisions individually redefined the meaning of “press” as it had been understood. Taken as a group, the cases illustrate that “press” has a broad meaning available to a variety of professional communicators using a variety of communication tools. 7. Valentine v. Chrestensen (1942) This case states the old rule of law. The facts of the case illustrate the element of “for profit” communication (advertising) which sets it apart from other communications that traditionally receive First Amendment protection. A skeleton of the case shows a businessman publishing and distributing handbills promoting tours of a former U.S submarine which he now owns. The city, under sanitary code regulations, forbids the distribution. Asked if a city government was denied the authority to regulate advertising, the U.S. Supreme Court justices said they were “. . . equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.” 8. New York Times v. Sullivan (1964) The 1960’s, a time of radical change in so much of American culture, showed some change in the U.S. Supreme Court’s view toward advertising. While most often cited for setting up the “public official” and “malice” rules applying to libel, the New York Times case granted constitutional protection for advertisements which deal with important or social matters. This case involved an “editorial advertisement” in the newspaper, written and paid for by a group of persons involved in the struggle for equality and civil rights in the South. The Court rejected the argument that Constitutional protection did not apply because it was paid advertisement. In doing so the Court had to broaden the traditional reliance on “reporter” to receive Constitutional protection: That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. . . Any other conclusion would discourage newspapers from carrying “editorial advertisements” of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure “the widest possible dissemination of information from diverse and antagonistic sources.” To avoid placing such a handicap upon the freedom of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected. . . they do not forfeit that protection because they were published in the form of a paid advertisement.
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9. Microsoft Corporation v. Yokohama Telecom Corporation (1998) Microsoft sued defendants for copyright and trademark infringement, and Yokohama counterclaimed, contending it was damaged by an allegedly defamatory paid advertisement published by Microsoft in Shih Chie Jin-pao or World Daily. The advertisement was directed at computer system builders and warned of Microsoft’s ongoing anti-piracy investigation and enforcement program. Among others, the advertisement identified Yokohama as a company “alleged to have distributed counterfeit Microsoft products to undercover investigators.” Microsoft held the publication was privileged for fair and accurate reports in public journals of judicial proceedings. The California court used U.S. Supreme Court cases to make its point. “This result is consistent with constitutional principles. Profit motive does not strip publishers of otherwise available constitutional protection (Times v. Sullivan, 1964). Although commercial speech is a second-class right which receives less scrutiny than other first amendment claims (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 1976). Microsoft’s announcement is not commercial speech (commercial speech is defined as “proposing a commercial transaction”) (Board of Trustees of State University of New York v. Fox, 1989). Since Microsoft’s advertisement did not propose a commercial transaction, the purchase of the space did not strip it of Constitutional protections. 10. Branzburg v. Hayes (1972) While it would be easy to skip over Branzburg because it deals with reporters refusing to testify before grand juries, the poignant attempt to define “newsman” significantly contributes to the changing view of who qualifies as a reporter of news. We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, . . .. Couched in this warning is also a vision of just how broad First Amendment protections might be applied. 11. von Bulow v. von Bulow (1987) The facts of this case involve an underlying suit alleging that Claus von Bulow secretly injected his wife with drugs cause her to lapse into a permanent coma. Martha von Bulow’s children attempted to compel the disclosure of an unpublished manuscript about the events surrounding Claus von Bulow’s criminal prosecution. The question for the court was whether one who gathers information initially for a purpose other than traditional journalistic endeavors and who later decides to author a book using such information may then invoke the First Amendment to shield the production of the information and the manuscript. The court’s ruling established the “intent based” rule to determine who qualifies for “qualified privilege.” We discern certain principles which we must use in determining whether, in the first instance, one is a member of the class entitled to claim the privilege. First, the process of newsgathering is a protected right under the First Amendment, albeit a qualified one. This qualified right, which results in the journalist’s privilege, emanates from the strong public policy supporting the unfettered communication of information by the journalist to the public. Second, whether a person is a journalist, and thus protected by the privilege, must be determined by the person’s intent at the inception of the information-gathering process. Third, an individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.
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The intent-based test provides the public relations function with an easy-to-understand application to follow. The intent-based test and following the general conditions for qualified privilege should serve public relations practitioners as they report on court proceedings, legislative activities, as well as administrative and executive reports and hearings. 12. In re Madden (1998) While there is general acceptance of the von Bulow “intent-based” test for a broad-based definition of journalists, a later case looked not only at the “intent” of the journalist but the “content” of the information seeking protection. The basic background of this case is: Titan Sports, Inc., and its competitor, Turner Broadcasting Systems (TBS), are the most prominent professional wrestling promoters in the United States. TBS’s “World Championship Wrestling” (WCW) has challenged Titan’s “World Wrestling Federation” (WWF) to engage in “interpromotional events,” wherein WCW wrestling personalities would compete with WWF personalities. Titan has refused to permit any of its wrestlers to engage in the activities. WCW employs Madden to produce tape-recorded commentaries, which are replayed to callers on WCW’s 900-number hotline. These commentaries promote upcoming WCW wrestling events and payper-view television programs, announce the results of wrestling matches and discuss wrestlers’ personal lives and careers. Madden asserts that in the course of preparing statements for the WCW hotline, he receives information from confidential sources. He admits, however, that his announcements are as much entertainment as journalism. The court, in its decision, questions whether Madden is a “journalist” under von Bulow and whether the information he disseminates is news? We hold that individuals are journalists when engaged in investigative reporting, gathering news, and have the intent at the beginning of the news-gathering process to disseminate this information to the public. Madden does not pass this test. Madden’s activities in this case cannot be considered “reporting,” let alone “investigative reporting.” By his own admission, he is an entertainer, not a reporter, disseminating hype, not news. Although Madden proclaims himself to be “Pro Wrestling’s only real journalist,” hyperbolic self-proclamation will not suffice as proof that an individual is a journalist. Moreover, the record reveals that all of Madden’s information was given to him directly by WCW executives. Madden’s deposition testimony acknowledges that WCW employees were his sole source of information for his commentaries. He uncovered no story on his own nor did he independently investigate any of the information given to him by WCW executives. Madden also fails the test in two other critical aspects: first, he was not gathering or investigating “news,” and second, he had no intention at the start of his information gathering process to disseminate the information he acquired. Madden’s work amounts to little more than creative fiction about admittedly fictional wrestling characters who have dramatic and ferocious-sounding pseudonyms like “Razor Ramon” and “Diesel.” As a creative fiction author, Madden’s primary goal is to provide advertisement and entertainment—not to gather news or disseminate information. It is clear from the record that Mr. Madden was not investigating “news,” even were we to apply a generous definition of the word. Madden admits in his deposition that his work for the WCW amounts to a mix of entertainment with reporting. He states that “with the WCW 900 number, I say things tongue [in] cheek. I say things for satire value, I say things to be funny, and sometimes I will take something like that and use it for humor value.” Furthermore, the record indicates that WCW executives told Madden to “be a little crazy, say off the wall stuff, entertain, use a lot of humor, sort of work—sort of be like the bad guy in the literal sense, not in terms of what I say is always going to be false, but in terms of what I say is going to get people excited. Even if Madden’s efforts could be considered as “newsgathering,” his claim of privilege would still fail because, as an author of entertaining fiction, he lacked the intent at the beginning of the research process to disseminate information to the public. He, like other creators of fictional works, intends at the beginning of the process to create a piece of art or entertainment. Fiction or entertainment writers are permitted to view facts selectively, change the emphasis or chronology of events or even fill in factual gaps with fictitious events–license a journalist does not have. Because Madden is not a journalist, it follows that he cannot conceal his information within the shadow of the journalist’s privilege. 13. Applying the qualified privilege rules One writer describes the changing content and presentation of news this way: “The public . . . is less and less able to distinguish between what is printed in the New York Times and that which appears in the National Enquirer, or
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between what can be scanned at washingtonpost.com and what is found at Matt Drudge’s website, The Drudge Report (Denniston, AM. U.L. REV, 1998). Within this new journalism, the public relations function is an active player in reporting to narrow, specific publics as well as to general audiences. As the public relations practitioner performs his reporting activities, more than likely the defense of qualified privilege will attach with only a few red warning flags that would forfeit the defense. The following two areas provide ample warning to the public relations practitioner. (1) Communication abuse: When performing reporting activities under the legal areas “interest of the publisher” or “common interest,” the defense of qualified privilege is lost when communication contains irrelevant defamatory matter or is published to persons who have no interest in the issue. Communicate only relevant information to narrow, specific audiences who have some direct interest in the issue. These audiences include an attorney, law enforcement, board of directors, stockholders, members of an organization or employees. (2) Fair and accurate reporting: When reporting activities under the legal area of reports of public proceedings, qualified privilege gives the public relations practitioner a much broader playing field. Once some legal action has been taken (the filing of a law suit) or the information comes from a legislative or government executive source, the report must only be fair and substantially accurate for qualified privilege to attach. Contrary to reporting to a narrow audience, these reports can be made to large general publics. For example, AMD published full-page advertisements and a number of newspapers and included a news release on its website newsroom immediately after AMD filed its suit against Intel. At the moment the suit was filed, qualified privilege attached and AMD was not liable for the defamatory words and phrases in the advertisement or press release that fairly and accurately represented the filing. 14. Exhibit The following website contains the 48-page filing: http://www.amd.com/us-en/assets/content type/ DownloadableAssets/AMD-Intel Full Complaint.pdf. The following website contains the AMD press release was posted on the AMD website newsroom the day of the suit filing: http://www.amd.com/us-en/Corporate/VirtualPressRoom/0,51 104 543 13743∼99713,00.html. References Denniston, L. (1998). From George Carlin to Matt Drudge: The constitutional implications of bringing the Paparazzi to America. 47 AM. U.L. REV. 1255, 1258. Franklin, M. (1980). Winners and losers and why: A study of defamation litigation. American Bar Foundation Research Journal, (Summer), 499. Keeton, W. Page (Ed.). (1984). Prosser and Keeton on Torts (5th ed.). St. Paul, MN: West Publishing Co.
Legal Citations Abraham Teitelbaum v. Curtis Publishing Company, 375 U.S. 982 (1964) (judicial immunity), Coffin v. Coffin, 4 Mass. 1 (1808) (legislative immunity); Spalding v. Vilas, 1161 U.S. 483 (1896) (executive immunity) AMD v. Intel, Dist Ct. Del. (2005). Baker v. Clark, 186 Ky. 816, 218 S.W. 280 (1920) (communication between stockholders) Cf. Loewinthan v. Levine, 270 App. Div. 512, 60 N.Y.S.2d 433 (1946) (hospital trustees to trustees). Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028 (1989). Brown v. Du Frey, 1 N.Y. 2d 649, 151 N.Y.S. 2d 649, 134 N.E. 2d 469 (1956). Brown & Williamson, Tobacco Corp. v. Jacobson, 713 F.2d 262, 7th Cir. (1983), Newell v. Field Enters, Inc., 91 Ill. App. 3d 735, 415 N.E. 2d 434, 47 Ill. Dec. 429, 1st Dist. (1980). Clark v. McBaine, 299 Mo. 77, 252 S.W. 428 (1923). Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 491–492 (1974). Food Lion v. Capital Cities/ABC, 194 F. 3d 505 (1999). Gertz v. Robert Welch, Inc. 309 F.Supp. 310, N.D., Ill. (1969). Giles v. State, 6 Ga. 276 (1848); cf. Smithy v. Fielden, 205 Tenn. 313, 326 S.W.2d 476 (1959). Greenbelt Co-op Pub. Ass’n v. Bresler, 253 Nd. 324, 252 A. 2d 755 (1969). Reversed on other grounds, 389 U.S. 6, 90 S.Ct. 1537 (1970). Hahn v. Andrello, 44 A.D. 2d 501, 355 Y.Y.S.2d 850 (1974). Hartzog v. United Press Ass’n, 202 F.2d 81, 4th Cir. (1953). Haycox v. Dunn, 200 Va. 212, 104 S.E. 2nd 800 (1958). Hutchinson v. Proximire, 443 U.S. 448, 99 S.Ct. 2675 (1979). In re Madden, 151 F3d 125, 127, 135 (1998).
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Lathrop v. Sundberg, 55 Wash. 144, 104 P. 176 (1909). Laurence University v. State, 68 Misc. 2d 408, 326 N.Y S 2d 617 (1971). Later reversed on grounds of absolute privilege, 41 A.D.2d 463, 344 N.Y.S. 2d 183 (1973). McDougall v. Claridge, 1 Camp. 267, 170 Eng. Rep. 953 (1808). Medic v. Time, Inc., 643 F.2d 134, 141, 3d Cir. (1981). Melton v. Bow, 241 Ga. 629, 247 S.E.2d 100 (1978); Paxton v. Woodward, 31 Mont. 195, 78 P. 215 (1904). Mick v. American Dental Association, 49 N.J. Super. 262, 139 A.2d 570 (1958). Miley v. Foster, 229 Miss. 106, 90 So2d 172 (1956). Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 473–474, 109 S. Ct. 3028 (1989). Branzburg v. Hayes 408 U.S. 665, 703–704 (1972). Microsoft Corporation v. Yokohama Telecom Corporation, 993 F. Supp 782 (1998). Newell v. Fild Enters., 91 Ill. App. 3d 735, 749 N.E. 2d 434, 446, 47 Ill. Dec. 429, 441, 1st Dist. (1980). New York Times Co. v. Sullivan, 376 U.S. 254, 265–266, 84 S.Ct. 710 (1964). Nichols v. Bristow Pub. Co., 330 P.2d 1044, Okl. (1957). Nye v. Western Union Tel. Co., C.C. Minn., 104 F. 628 (1900). Overstreet v. New Nonpareil Co., 184 Iowa 485, 167 N.W. 669 (1918). Patton v. Cruce, 72 Ark 421, 81 S.W. 380 (1904). Powell v. Young, 151 Va. 985, 144 S.E. 624, 145 S.E. 731 (1928). Pring v. Penthouse, 695 F.2d 438 (1983). Ramsdell v. Pennsylvania R. Co., 79 N.J.L. 379 A. 444 (1910). Solverson v. Peterson, 64 Wis. 198, 25 N.W. 14 (1885). Time, Inc. v Pape, 401 U.S. 279 (1971). Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 921 (1942). Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n. 24, 96 S.Ct. 1817 (1976). von Bulow v. von Bulow, 811 F.2d 136, 142 (1987). The First Circuit Court in Cusumano v. Microsoft Corp., 162 F. 3d 708, 714-15 (1998) and the Third Circuit Court in In re Madden, 151 F.3d 125, 130 (1998) have endorsed the van Bulow “intent based” rule. Ward v. Painters’ Local, Union No. 300, 41 Wn.2n 859, 252 P.2d 253 (1953). Weenig v. Wood, 169 Ind.App. 413, 349 N.E.2d 235 (1976).
Qualified privilege: A defense for the public relations function Frank Walsh ∗ School of Journalism and Mass Communication, Texas State University at San Marcos, 601 University Drive, San Marcos, TX 78666-4616, USA Received 18 May 2006; received in revised form 28 August 2006; accepted 1 September 2006
Abstract Technology continues to challenge the public relations practitioner to find ways to inform key constituents. The new technology has given rise to the “new journalism” that includes a declining traditional media and exploding internet media filled with websites and bloggers. The question posed by this research asks: Does the public relations practitioner inherit the same protection offered by “qualified privilege” that is most often associated with the traditional “press” or “reporter?” The research lays a foundation with an examination of defamation and the defense of qualified privilege. The research concludes that if information gathered by the public relations practitioner meets the “intent” and “content” tests, the information qualifies as news. Passing the “news” test, the defense of “qualified privilege” also attaches to the public relations practitioner. © 2006 Elsevier Inc. All rights reserved. Keywords: Defamation; Defamation defenses; Qualified privilege; Public relations and news; Definition of news
1. Introduction The legal concept of privilege acts as the referee in what can sometimes be contentious communication debates with a variety of defamatory accusations. Absolute privilege and its attendant cousin, qualified privilege, set the communication rules as individuals and organizations seek to redress grievances. Following these rules keeps communicators free from liability for what can be significant monetary damages. The communication professional acts as the fulcrum, balancing the information tightly held in the absolute privilege activity and the release of this same information to the general public while maintaining the defense of qualified privilege. As mass communication law developed, discussions of privilege referenced “the reporter” or “the press.” These references almost always had in mind the writers for traditional, institutional media: newspapers, magazines and later broadcast outlets. During the early years, the public relations function did not have a role in the libel dramas as they were decided by the courts. At the same time, the responsibility of the practitioner remained steady: to inform their constituents of information necessary for successful decision making. Some of the most important information that needed to be communicated came from activities generally considered protected by absolute privilege: legislative and judicial. Not knowing whether the courts would consider them as “reporters” and therefore protected by qualified privilege, practitioners had three choices: (1) depend on traditional outlets to inform their constituents (sometimes making the
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mistake of copying articles from traditional sources and circulating these; an act constituting republication and a new libel), (2) write their own materials, but being careful to leave out any material that might be considered libelous, or (3) unaware of the possible risk, went ahead and wrote reports including the libelous material. The case might be made that these techniques worked. No major case has gone through the courts deciding whether public relations practitioners are considered reporters and whether qualified privilege can be claimed by the public relations function (Hutchinson v. Proximire, 1998). At the same time the media landscape changed. While there are fewer and fewer newspapers, and these are owned by media conglomerates, traditional journalism has given way to the new journalism. Newsweek described new journalism this way: “Just the facts won’t do anymore. Today’s savviest political tone-setters, from Webheads to columnists, comedians to ideologues, are the ones who use technology, entertainment, attitude and humor to deliver their take on the news—and sometimes to make it . . .. The News News is about cutting through the clutter, creating new channels for information and, in a lot of cases, getting a laugh—or a gasp” (Newsweek, 1999, Jan.18, 2). Since Newsweek’s description, “bloggers” have moved from the background to the forefront as gatherers and distributors of news. The public relations practitioner operates in this world of new journalism. The option of only informing constituents via traditional media died with the birth of the new journalism. Now, more than ever, the practitioner performs as the reporter, the direct communication link between an activity and the audience. Today this question is more relevant than ever: is a public relations practitioner a “reporter” under modern court decisions and does qualified privilege offer the same protection in covering absolute privilege activities? This paper addresses the question in several steps: (1) (2) (3) (4) (5) (6)
providing a summary overview of defamation, outlining the development of the qualified privilege of “interest of the publisher” and “common interest,” providing a short background in the development of the qualified privilege of “reports of public proceedings,” citing court cases that broaden the definition of “reporter,” citing court cases that look at communications other than traditional news tools, and suggesting guidelines to secure qualified privilege as a successful defense.
2. Overview of defamation Public relations practitioners are reporters to their constituents. As such, these reporters and the organizations they represent run the risk of defaming individuals, groups or organizations. Defamatory language can be included in employee newspapers, bulletins, posters as well as broadcasts, video tapes and CDs that provide “news” to these important audiences. The same is true for these same public relations tools used to inform members of an association or other groups. As with any reporter, the public relations practitioner’s professionalism includes a knowledge of libel as it specifically applies to the tools of public relations and a working knowledge of libel defenses. In general libel is communication that exposes a person or organization to hatred, ridicule, contempt, loss of esteem, humiliation, or damages one’s trade or profession. While these are extremely broad areas, one study covering a 40month period, reported that the large majority of complaints by plaintiffs were that they had been falsely accused of “crime, moral failings, and incompetence in trade or profession” (Franklin, American Bar Foundation Research Journal, 1980).Individuals are frequently the target of defamatory slings. The following words describing individuals have been held actionable: to call one “a liar” (Melton v. Bow, 1978), or “a scandalmonger” (Patton v. Cruce, 1904), “a drunkard” (Giles v. State, 1959), “a hypocrite” (Overstreet v. New Nonpareil Co., 1918), or “a hog” (Solverson v. Peterson, 1885) or to call one “heartless and neglectful of his family” (Brown v. DuFrey, 1956). Some political philosophies and affiliations when mapped onto an individual can be dangerous. For example, Chicago Attorney Elmer Gertz was falsely charged by the John Birch Society as being a “Leninist,” a “Communist-fronter,” and a member of the “Marxist League for Industrial Democracy.” The court found these words defamatory (Gertz v. Robert Welch, 1969). The potential for damaging a person’s way of earning a living is as endless as there are ways of earning a living. To say that a University was a “degree mill” (Laurence University v. State, 1971); that a contractor engaged in “unethical trade” (Greenbelt Co-op Pub Ass’n v. Breslelr, 1970); that an attorney was incompetent (Hahn v. Andrellow, 1974); that a corporation director embezzled (Weenig v. Wood, 1976) or accusing one of “shady ethics” (Nichols v. Bristow Pub. Co., 1957) all have been judged defamatory.
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Defamatory slings at organizations have pitted some of the world’s largest organizations against each other. In Microsoft Corporation v. Yokomama Telecom Corporation case, Microsoft used words such as “piracy” and “counterfeit” products in its action (Microsoft Corporation v. Yokohama Telecom Corporation, 1998). In the current on-going action that AMD has against Intel, AMD describes Intel as “engaging in worldwide coercion of customers” and that the choice and benefits of innovation “are being stolen away . . .” (AMD v. Intel, Delaware District Court, 2005). The cost of ignorance about libel can be costly. In addition to high legal fees, monetary damages can be extreme. Just a few damage awards are cited to catch the attention of the public relations practitioner: US$ 26.5 million (Pring v. Penthouse, 1983), US$ 5.5 million (Food Lion v. Capital Cities ABC, 1999), and US$ 3.05 million (Brown & Williamson Tobacco Corp. v. Jacobson, 1983). The major defenses for defamatory liability are truth, fair comment and criticism and privilege. The paper explores the defense of privilege. 3. Privilege as a defense against defamation Immunity from liability for defamatory communication protects two different sets of players: • the person or organization initiating the defamatory communication (interest of the publisher and common interest), and • the communicator who passes this defamatory communication onto others (reports of public proceedings). In general, privilege rests on the idea “that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. The interest thus favored may be one of the defendant himself, of a third person, or of the general public” (Prosser & Keeton on Torts, 5th ed., 1984). To define qualified privilege, Prosser and Keeton reach back to a statement by Baron Parke made in a 1834 case. According to Parke, a communication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned” (Prosser & Keeton). Interest of the publisher, common interest, communication to one who may act in the public interest and fair comment on matters of public concern are some of the basic communication interests that are protected by qualified privilege (Prosser & Keeton). While complementary, these interests are significantly different than the qualified privilege attached to “reports of public proceedings” most often associated with the media (Prosser & Keeton). For the public relations practitioner this combination of complementary qualified privilege interests provides a broad communication defense. For the purposes of this research qualified privilege is broken into two categories. • Interest of the publisher and common interests. • Reports of public proceedings. 4. Interest of the publisher and common interests Interest of the publisher is similar to self-defense or the defense of property. Qualified privilege attaches to communication that is defamatory for the protection or advancement of the defendant’s own legitimate interest (Haycox v. Dunn, 1958). While a broad variety of cases are cited giving examples of this interest, two are of particular importance: a defendant is protected by qualified privilege if the communication is “to protect against the mismanagement of a concern in which he has an interest” (McDougall v. Claridge, 1808) or “to protect his business against unethical competition” (Powell v. Young, 1928). In common interest cases, the communicator and the recipient have a common financial interest such as when business dealings are shared or when the parties belong to the same group where officers, agents or employees of a business organization communicate with shareholders (Baker v. Clark, 1920), or with other employees or branch offices (Miley v. Foster, 1956) about the affairs of the organization itself. The privilege also attaches to non-financial groups such as professional societies (Mick v. American Dental Association, 1958), educational organizations (Clark v. McBaine, 1923) and labor unions (Ward v. Painters’ Local Union No. 300, 1953).
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Communication “abuse” forfeits the defense of qualified privilege in two areas: the defense does not attach “to the publication of irrelevant defamatory matter with no bearing upon the public or private interest which is entitled to protection” (Lathrop v. Sundberg, 1909); “nor does it include publication to any person other than those whose hearing of it is reasonably believed to be necessary or useful for the furtherance of that interest” (Ramsdell v. Pennsylvania R. Co., 1910). On the other hand, “any reasonable and appropriate method of publication may be adopted which fits the purpose of protecting the particular interest, according to Prosser and Keeton. As examples, they cite the dictation of a business letter to a stenographer (Mick v. American Dental Association, 1958) or the use of the telegraph where time is important (Nye v. Western Union Tel. Co., 1900). Applied to current public relations activities, “interest of the publisher” qualified privilege might well be applied to defamatory remarks made in a shareholder complaint or the current AMD v. Intel Corp. suit in which AMD claims unethical competition by Intel. “Common interest” qualified privilege includes communications with shareholders, employees, and association members as well as professional societies and labor unions. 5. Reports of public proceedings Common law recognized that specific activities and offices have partial or complete protection from libel. These settings have a unique quality according to common law: society has an overwhelming interest in protecting the speaker and encouraging unrestricted speech, even if the speech contained defamatory material (Prosser & Keeton). Within this protected robust debate, society has its best chance at arriving at an acceptable version of the truth. The common law carefully restricted this scope of absolute privilege to legislative proceedings, government executives, and participants in judicial proceedings and documents either included in these proceedings or that were an outcome of these proceedings. These general outlines of absolute privilege remain today; they are recognized at all levels of government and court systems. Qualified privilege, in general, states that if a publisher acts in good faith and reports accurately and fairly he need not consider the truth or falsity of the absolute privilege proceedings being reported. Basic rationale for this protection is the public’s interest in having the operations and deliberations of government institutions made public (Columbia Law Review, 1964). The Supreme Court has made this rationale clear: “Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government; the official records and documents open to the public are the basic data of government operations. Without the information provided by the press, most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally” (Cox Broadcasting Co. v. Cohn, 1974). A second rationale for the privilege concerns the public nature of the proceedings and documents covered by the privilege. The legal fiction is that the reporter serves as the public eye since any citizen could have attended and observed the proceedings. This legal fiction allows the information to penetrate further into the entire democratic base and therefore increase the robust debate (Medic v. Time, 1981). Unlike absolute privilege, qualified privilege for public proceedings carries some conditions before immunity from liability attaches. The critical condition is a “fair and accurate” summary of the proceedings or document (Brown & Williamson Tobacco Corp. v. Jacobson, 1983). The courts have offered some guidelines as to what constitutes “fair and accurate”. For qualified privilege to attach, a report does not need to be a verbatim transcript of the source (Time, Inc. v. Pape, 1971). Both news source and the consumer of information require summaries of proceedings or documents. News sources have extremely limited time and space restraints; consumers of information have limited time to give to the numerous activities they want to be informed about in any news time frame. Fairness also requires impartiality. A summary does not need to state all that occurred, but it must not present one aspect or point of view of the issues and exclude others (Hartzog v. United Press Ass’n, 1953). In the Hartzog case, a libel action was filed against a news association which allegedly reported, without foundation in fact, that the plaintiff had been forcibly ejected from a political party executive committee meeting by police. One of the reports stated: “Sumter City Police were posted in front of the meeting room after Publicity Chairman Gerald Hartzog of Charleston was forcibly ejected,” according to the ruling. The information stated did not give a complete summary of what had happened and in fact presented some false information. Accuracy refers to the factual correctness of the proceedings and documents included in the report, as stated in the Brown & Williamson Tobacco ruling. Accuracy attaches to the statements included in the proceedings or documents,
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not to the truth of these statements. Truth or falsity of statements made during the course of proceedings or included in documents is not relevant to the accuracy of their republication, according to the court. In a case by a tobacco corporation, the alleged defamatory information was included in a research report that ended up as part of a Federal Trade Commission investigation regarding an advertising strategy. The court did not go to the truth or falsity of the information but simply said: “. . . the fairness of the summary emerged so incontrovertibly from a comparison of the FTC staff report with the broadcast that no rational jury considering those documents, with the aid of whatever additional evidence plaintiff might introduce, could consider the summary unfair,” according to the Brown & Williamson Tobacco ruling. In fact, an attempt to correct a false statement or to remove a defamatory statement from a summary report may raise questions about the accuracy of the report. If trying to soften the impact of defamatory information in a report raises questions of accuracy, the report cannot overly emphasize defamatory material. One court put it this way: “If the newspaper article contained a ‘greater sting’ in terms of libelous impact than did the (source statement), it cannot be considered a fair and accurate summary” (Newell v. Fild Enters, 1980). According to this court, the greater sting in this case was in the report of a wrongful death in which the report “impeached plaintiff’s respect for human life. . ..” 6. Redefining the meaning of ‘press’ Freedom of speech and of the press took on a broader meaning as courts ruled on a variety of circumstances that did not always involve the customary news article in the traditional media. None of the court decisions individually redefined the meaning of “press” as it had been understood. Taken as a group, the cases illustrate that “press” has a broad meaning available to a variety of professional communicators using a variety of communication tools. 7. Valentine v. Chrestensen (1942) This case states the old rule of law. The facts of the case illustrate the element of “for profit” communication (advertising) which sets it apart from other communications that traditionally receive First Amendment protection. A skeleton of the case shows a businessman publishing and distributing handbills promoting tours of a former U.S submarine which he now owns. The city, under sanitary code regulations, forbids the distribution. Asked if a city government was denied the authority to regulate advertising, the U.S. Supreme Court justices said they were “. . . equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.” 8. New York Times v. Sullivan (1964) The 1960’s, a time of radical change in so much of American culture, showed some change in the U.S. Supreme Court’s view toward advertising. While most often cited for setting up the “public official” and “malice” rules applying to libel, the New York Times case granted constitutional protection for advertisements which deal with important or social matters. This case involved an “editorial advertisement” in the newspaper, written and paid for by a group of persons involved in the struggle for equality and civil rights in the South. The Court rejected the argument that Constitutional protection did not apply because it was paid advertisement. In doing so the Court had to broaden the traditional reliance on “reporter” to receive Constitutional protection: That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. . . Any other conclusion would discourage newspapers from carrying “editorial advertisements” of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure “the widest possible dissemination of information from diverse and antagonistic sources.” To avoid placing such a handicap upon the freedom of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected. . . they do not forfeit that protection because they were published in the form of a paid advertisement.
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9. Microsoft Corporation v. Yokohama Telecom Corporation (1998) Microsoft sued defendants for copyright and trademark infringement, and Yokohama counterclaimed, contending it was damaged by an allegedly defamatory paid advertisement published by Microsoft in Shih Chie Jin-pao or World Daily. The advertisement was directed at computer system builders and warned of Microsoft’s ongoing anti-piracy investigation and enforcement program. Among others, the advertisement identified Yokohama as a company “alleged to have distributed counterfeit Microsoft products to undercover investigators.” Microsoft held the publication was privileged for fair and accurate reports in public journals of judicial proceedings. The California court used U.S. Supreme Court cases to make its point. “This result is consistent with constitutional principles. Profit motive does not strip publishers of otherwise available constitutional protection (Times v. Sullivan, 1964). Although commercial speech is a second-class right which receives less scrutiny than other first amendment claims (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 1976). Microsoft’s announcement is not commercial speech (commercial speech is defined as “proposing a commercial transaction”) (Board of Trustees of State University of New York v. Fox, 1989). Since Microsoft’s advertisement did not propose a commercial transaction, the purchase of the space did not strip it of Constitutional protections. 10. Branzburg v. Hayes (1972) While it would be easy to skip over Branzburg because it deals with reporters refusing to testify before grand juries, the poignant attempt to define “newsman” significantly contributes to the changing view of who qualifies as a reporter of news. We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, . . .. Couched in this warning is also a vision of just how broad First Amendment protections might be applied. 11. von Bulow v. von Bulow (1987) The facts of this case involve an underlying suit alleging that Claus von Bulow secretly injected his wife with drugs cause her to lapse into a permanent coma. Martha von Bulow’s children attempted to compel the disclosure of an unpublished manuscript about the events surrounding Claus von Bulow’s criminal prosecution. The question for the court was whether one who gathers information initially for a purpose other than traditional journalistic endeavors and who later decides to author a book using such information may then invoke the First Amendment to shield the production of the information and the manuscript. The court’s ruling established the “intent based” rule to determine who qualifies for “qualified privilege.” We discern certain principles which we must use in determining whether, in the first instance, one is a member of the class entitled to claim the privilege. First, the process of newsgathering is a protected right under the First Amendment, albeit a qualified one. This qualified right, which results in the journalist’s privilege, emanates from the strong public policy supporting the unfettered communication of information by the journalist to the public. Second, whether a person is a journalist, and thus protected by the privilege, must be determined by the person’s intent at the inception of the information-gathering process. Third, an individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.
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The intent-based test provides the public relations function with an easy-to-understand application to follow. The intent-based test and following the general conditions for qualified privilege should serve public relations practitioners as they report on court proceedings, legislative activities, as well as administrative and executive reports and hearings. 12. In re Madden (1998) While there is general acceptance of the von Bulow “intent-based” test for a broad-based definition of journalists, a later case looked not only at the “intent” of the journalist but the “content” of the information seeking protection. The basic background of this case is: Titan Sports, Inc., and its competitor, Turner Broadcasting Systems (TBS), are the most prominent professional wrestling promoters in the United States. TBS’s “World Championship Wrestling” (WCW) has challenged Titan’s “World Wrestling Federation” (WWF) to engage in “interpromotional events,” wherein WCW wrestling personalities would compete with WWF personalities. Titan has refused to permit any of its wrestlers to engage in the activities. WCW employs Madden to produce tape-recorded commentaries, which are replayed to callers on WCW’s 900-number hotline. These commentaries promote upcoming WCW wrestling events and payper-view television programs, announce the results of wrestling matches and discuss wrestlers’ personal lives and careers. Madden asserts that in the course of preparing statements for the WCW hotline, he receives information from confidential sources. He admits, however, that his announcements are as much entertainment as journalism. The court, in its decision, questions whether Madden is a “journalist” under von Bulow and whether the information he disseminates is news? We hold that individuals are journalists when engaged in investigative reporting, gathering news, and have the intent at the beginning of the news-gathering process to disseminate this information to the public. Madden does not pass this test. Madden’s activities in this case cannot be considered “reporting,” let alone “investigative reporting.” By his own admission, he is an entertainer, not a reporter, disseminating hype, not news. Although Madden proclaims himself to be “Pro Wrestling’s only real journalist,” hyperbolic self-proclamation will not suffice as proof that an individual is a journalist. Moreover, the record reveals that all of Madden’s information was given to him directly by WCW executives. Madden’s deposition testimony acknowledges that WCW employees were his sole source of information for his commentaries. He uncovered no story on his own nor did he independently investigate any of the information given to him by WCW executives. Madden also fails the test in two other critical aspects: first, he was not gathering or investigating “news,” and second, he had no intention at the start of his information gathering process to disseminate the information he acquired. Madden’s work amounts to little more than creative fiction about admittedly fictional wrestling characters who have dramatic and ferocious-sounding pseudonyms like “Razor Ramon” and “Diesel.” As a creative fiction author, Madden’s primary goal is to provide advertisement and entertainment—not to gather news or disseminate information. It is clear from the record that Mr. Madden was not investigating “news,” even were we to apply a generous definition of the word. Madden admits in his deposition that his work for the WCW amounts to a mix of entertainment with reporting. He states that “with the WCW 900 number, I say things tongue [in] cheek. I say things for satire value, I say things to be funny, and sometimes I will take something like that and use it for humor value.” Furthermore, the record indicates that WCW executives told Madden to “be a little crazy, say off the wall stuff, entertain, use a lot of humor, sort of work—sort of be like the bad guy in the literal sense, not in terms of what I say is always going to be false, but in terms of what I say is going to get people excited. Even if Madden’s efforts could be considered as “newsgathering,” his claim of privilege would still fail because, as an author of entertaining fiction, he lacked the intent at the beginning of the research process to disseminate information to the public. He, like other creators of fictional works, intends at the beginning of the process to create a piece of art or entertainment. Fiction or entertainment writers are permitted to view facts selectively, change the emphasis or chronology of events or even fill in factual gaps with fictitious events–license a journalist does not have. Because Madden is not a journalist, it follows that he cannot conceal his information within the shadow of the journalist’s privilege. 13. Applying the qualified privilege rules One writer describes the changing content and presentation of news this way: “The public . . . is less and less able to distinguish between what is printed in the New York Times and that which appears in the National Enquirer, or
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between what can be scanned at washingtonpost.com and what is found at Matt Drudge’s website, The Drudge Report (Denniston, AM. U.L. REV, 1998). Within this new journalism, the public relations function is an active player in reporting to narrow, specific publics as well as to general audiences. As the public relations practitioner performs his reporting activities, more than likely the defense of qualified privilege will attach with only a few red warning flags that would forfeit the defense. The following two areas provide ample warning to the public relations practitioner. (1) Communication abuse: When performing reporting activities under the legal areas “interest of the publisher” or “common interest,” the defense of qualified privilege is lost when communication contains irrelevant defamatory matter or is published to persons who have no interest in the issue. Communicate only relevant information to narrow, specific audiences who have some direct interest in the issue. These audiences include an attorney, law enforcement, board of directors, stockholders, members of an organization or employees. (2) Fair and accurate reporting: When reporting activities under the legal area of reports of public proceedings, qualified privilege gives the public relations practitioner a much broader playing field. Once some legal action has been taken (the filing of a law suit) or the information comes from a legislative or government executive source, the report must only be fair and substantially accurate for qualified privilege to attach. Contrary to reporting to a narrow audience, these reports can be made to large general publics. For example, AMD published full-page advertisements and a number of newspapers and included a news release on its website newsroom immediately after AMD filed its suit against Intel. At the moment the suit was filed, qualified privilege attached and AMD was not liable for the defamatory words and phrases in the advertisement or press release that fairly and accurately represented the filing. 14. Exhibit The following website contains the 48-page filing: http://www.amd.com/us-en/assets/content type/ DownloadableAssets/AMD-Intel Full Complaint.pdf. The following website contains the AMD press release was posted on the AMD website newsroom the day of the suit filing: http://www.amd.com/us-en/Corporate/VirtualPressRoom/0,51 104 543 13743∼99713,00.html. References Denniston, L. (1998). From George Carlin to Matt Drudge: The constitutional implications of bringing the Paparazzi to America. 47 AM. U.L. REV. 1255, 1258. Franklin, M. (1980). Winners and losers and why: A study of defamation litigation. American Bar Foundation Research Journal, (Summer), 499. Keeton, W. Page (Ed.). (1984). Prosser and Keeton on Torts (5th ed.). St. Paul, MN: West Publishing Co.
Legal Citations Abraham Teitelbaum v. Curtis Publishing Company, 375 U.S. 982 (1964) (judicial immunity), Coffin v. Coffin, 4 Mass. 1 (1808) (legislative immunity); Spalding v. Vilas, 1161 U.S. 483 (1896) (executive immunity) AMD v. Intel, Dist Ct. Del. (2005). Baker v. Clark, 186 Ky. 816, 218 S.W. 280 (1920) (communication between stockholders) Cf. Loewinthan v. Levine, 270 App. Div. 512, 60 N.Y.S.2d 433 (1946) (hospital trustees to trustees). Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028 (1989). Brown v. Du Frey, 1 N.Y. 2d 649, 151 N.Y.S. 2d 649, 134 N.E. 2d 469 (1956). Brown & Williamson, Tobacco Corp. v. Jacobson, 713 F.2d 262, 7th Cir. (1983), Newell v. Field Enters, Inc., 91 Ill. App. 3d 735, 415 N.E. 2d 434, 47 Ill. Dec. 429, 1st Dist. (1980). Clark v. McBaine, 299 Mo. 77, 252 S.W. 428 (1923). Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 491–492 (1974). Food Lion v. Capital Cities/ABC, 194 F. 3d 505 (1999). Gertz v. Robert Welch, Inc. 309 F.Supp. 310, N.D., Ill. (1969). Giles v. State, 6 Ga. 276 (1848); cf. Smithy v. Fielden, 205 Tenn. 313, 326 S.W.2d 476 (1959). Greenbelt Co-op Pub. Ass’n v. Bresler, 253 Nd. 324, 252 A. 2d 755 (1969). Reversed on other grounds, 389 U.S. 6, 90 S.Ct. 1537 (1970). Hahn v. Andrello, 44 A.D. 2d 501, 355 Y.Y.S.2d 850 (1974). Hartzog v. United Press Ass’n, 202 F.2d 81, 4th Cir. (1953). Haycox v. Dunn, 200 Va. 212, 104 S.E. 2nd 800 (1958). Hutchinson v. Proximire, 443 U.S. 448, 99 S.Ct. 2675 (1979). In re Madden, 151 F3d 125, 127, 135 (1998).
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Lathrop v. Sundberg, 55 Wash. 144, 104 P. 176 (1909). Laurence University v. State, 68 Misc. 2d 408, 326 N.Y S 2d 617 (1971). Later reversed on grounds of absolute privilege, 41 A.D.2d 463, 344 N.Y.S. 2d 183 (1973). McDougall v. Claridge, 1 Camp. 267, 170 Eng. Rep. 953 (1808). Medic v. Time, Inc., 643 F.2d 134, 141, 3d Cir. (1981). Melton v. Bow, 241 Ga. 629, 247 S.E.2d 100 (1978); Paxton v. Woodward, 31 Mont. 195, 78 P. 215 (1904). Mick v. American Dental Association, 49 N.J. Super. 262, 139 A.2d 570 (1958). Miley v. Foster, 229 Miss. 106, 90 So2d 172 (1956). Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 473–474, 109 S. Ct. 3028 (1989). Branzburg v. Hayes 408 U.S. 665, 703–704 (1972). Microsoft Corporation v. Yokohama Telecom Corporation, 993 F. Supp 782 (1998). Newell v. Fild Enters., 91 Ill. App. 3d 735, 749 N.E. 2d 434, 446, 47 Ill. Dec. 429, 441, 1st Dist. (1980). New York Times Co. v. Sullivan, 376 U.S. 254, 265–266, 84 S.Ct. 710 (1964). Nichols v. Bristow Pub. Co., 330 P.2d 1044, Okl. (1957). Nye v. Western Union Tel. Co., C.C. Minn., 104 F. 628 (1900). Overstreet v. New Nonpareil Co., 184 Iowa 485, 167 N.W. 669 (1918). Patton v. Cruce, 72 Ark 421, 81 S.W. 380 (1904). Powell v. Young, 151 Va. 985, 144 S.E. 624, 145 S.E. 731 (1928). Pring v. Penthouse, 695 F.2d 438 (1983). Ramsdell v. Pennsylvania R. Co., 79 N.J.L. 379 A. 444 (1910). Solverson v. Peterson, 64 Wis. 198, 25 N.W. 14 (1885). Time, Inc. v Pape, 401 U.S. 279 (1971). Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 921 (1942). Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n. 24, 96 S.Ct. 1817 (1976). von Bulow v. von Bulow, 811 F.2d 136, 142 (1987). The First Circuit Court in Cusumano v. Microsoft Corp., 162 F. 3d 708, 714-15 (1998) and the Third Circuit Court in In re Madden, 151 F.3d 125, 130 (1998) have endorsed the van Bulow “intent based” rule. Ward v. Painters’ Local, Union No. 300, 41 Wn.2n 859, 252 P.2d 253 (1953). Weenig v. Wood, 169 Ind.App. 413, 349 N.E.2d 235 (1976).