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Are Reporters Liable for Getting a Story Wrong?

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By Christopher Coble, Esq. on April 09, 2015 3:56 PM

Rolling Stone and Columbia University's School of Journalism released an in-depth report detailing the myriad journalistic failures with an article covering an alleged rape at the University of Virginia. In response, Phi Kappa Psi, the fraternity implicated in the story, has announced plans to take legal action against Rolling Stone.

But do they have a case? Can reporters and news publications be liable for stories that turn out to be false? Here's a look at the frat's possible defamation lawsuit.

A Defamation Case

The elements of a defamation claim appear fairly straightforward: a false statement that was published and caused some harm. In general, the publication element is easy to prove when it comes to news stories, especially since just one third party needs to have seen, heard, or read the defamatory statement.

There can be some complications, however, in proving fault, which can depend on whether the subject of the defamatory statement is a public or private figure. While public figures must prove "actual malice," or that the defendant knew that the statement was false or acted in reckless disregard of the statement's truth or falsity, private persons only need to show that the defendant acted negligently in failing to ascertain whether a statement was false.

There can also be differences in law depending on whether plaintiffs sue individually or as a group. If the group is small enough, a plaintiff can sue individually and allege that he or she is harmed by a defamatory statement about the group. On the other hand, an organization can sue based on damage to its "public estimation." Government agencies, however, can't sue for libel.

The Case Against Rolling Stone

At this point, Phi Kappa Psi has yet to file a lawsuit and it is possible the matter could be settled out of court. It appears they might have a good case if it ever goes to trial.

An important point about the claims, though: while the accuser, "Jackie," named a purported frat member as her date that night and a participant in the rape, the police investigation revealed no such person existed. And the university is a government agency, so there won't be any lawsuits from the school or the alleged rapists.

Also, while journalists are generally immune from defamation claims if they "fairly and accurately report incorrect information that comes directly from an official source," that privilege probably won't exist here, where the writer got nearly all of her information from the purported victim.

The story clearly implicated the fraternity, saying the rape happened at the fraternity's house and was committed by fraternity members during a fraternity party. And the magazine itself and a police investigation both determined the rape allegations were false.

Given the protests at the frat house and the initial backlash following the story's publication, it would be difficult to say the fraternity's public reputation wasn't harmed. All of these factors appear to add up to a good case for defamation, but only time and the courts will tell for sure.

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