LEGAL AND ETHICAL CONSIDERATIONS FOR WRITERS:Libel, Doctoring Quotes

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Feature and Column Writing MCM 514

LESSON 44

LEGAL AND ETHICAL CONSIDERATIONS FOR WRITERS

The press in this country these days is among the freest in the world. The brilliance of our forebears was

in linking press freedoms with the other guaranteed freedoms -- religion, right of assembly and speech

and redress of grievances. This intertwining of revered freedoms has made it doubly difficult to tinker

with the free status of the press, no matter how volatile public opinion may become. (And, unfortunately,

in times of national unrest, there are always a few "public-spirited" individuals who would like to see one

or another of the First Amendment freedoms curtailed.)

No government can afford to give blanket freedom to its press system.

Legal and ethical considerations for writers

As free as the press may be in this country, there are still certain restrictions and limitations that writers

must keep firmly in mind. The most important of these, for your purposes, are the laws pertaining to libel,

privacy and copyright. However, there are also some pertinent ethical restrictions not governed by law.

Ethics are a personal, private matter to be decided by each writer according to the dictates of conscience,

but publishing etiquette demands adherence to some basic ethical principles.

Libel

Libel is a false statement about a living person that does damage to that person's reputation in the

community in which he or she lives. It may also cause embarrassment or humiliation, or affect a person's

ability to make a living. The four most commonly cited classic examples of libel (though some sound

antiquated and naive), called libel per Se, would be to charge someone falsely with the commission of a

crime, or to suggest that a woman is unchaste, or to charge that someone has or has had a loathsome or

contagious disease or to bring discredit on someone in his or her profession, such as calling a doctor a

quack or claiming that a lawyer is an ambulance chaser.

If you, through carelessness or malice, make a libellous statement about a person, you could easily end up

in court. And that can cost you time, anxiety and money. There are three kinds of damages that a libel

claimant can ask a court to award. The first is general damages, granted for injury to reputation. The

second is special damages for specific pecuniary loss -- which means a true monetary loss, such as an

erosion of business or losing one's job as a result of the libel. An outside source is usually required to

prove the extent of special damages, unless the libel is per se, one of the four classic examples given

above, in which case no proof of actual damages is necessary. The final form of damages is punitive, and

is usually sought by the claimant as a punishment against an author or a publisher for making the mistake.

Punitive damages can be awarded only if the writer or publisher has shown reckless disregard or

malicious intent to harm, meaning they knew the statement was false or had reason to suspect it might be

false.

Mistakes are easy to make. You might think only that you have a solid piece of information, or you might

copy a name wrong from your research notes or you might quote a person incorrectly in a way that makes

him or her look incompetent. So lesson number one in avoiding libel difficulties is: Be careful. Check and

double-cheek your facts. If you've written something that appears to be libellous on the face of it, make

sure you can trust your notes. Most good newspapers and magazines have legal advisers to worry and fret

over possible actionable material, but even the best of lawyers miss a few. The job begins with the writer.

If you are sure of your facts and can back them up, then much of the danger is behind you. If you're not

so certain of your facts, think long and hard before you use them.

If a potentially libellous statement slips through and you end up in court, how do you protect yourself?

For years, the most frequently used defences were the common law defences: truth, fair comment, fair

report of a judicial or official proceeding. Then, in the landmark The New York Times v. Sullivan ruling in

1964, the Supreme Court opened a new door to libel defence. The plaintiff, Sullivan, was a public official,

a police commissioner who charged that he had been libelled in a civil rights advertisement that ran in

The New York Times. The Supreme Court, overturning an Alabama court decision that found in favour of

Sullivan, said that a public official could not maintain a suit for damage to reputation unless the official

could prove that the libellous statement was published with actual malice. You've heard the term before.

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It has nothing to do with the dictionary definition of malice. Actual malice, as defined by the court, means

that the writer or publisher either knew that the statement was false or went ahead and published it with a

reckless disregard for whether or not is was false. This decision has since expanded to include public

figures--people who are consistently in the public eye, such as very well-known professional athletes and

entertainers and other celebrities.

"Neutral reportage" usually occurs when a writer has written an accurate report about a public figure

based on information received from a reliable source. Even if the reporter doubts the truth of the material,

he is protected in some jurisdictions because he has made an accurate and "neutral" report.

Invasion of privacy

If you think libel laws are confusing, wait until you get into the ticklish rights of privacy. From the

standpoint of the writer, this is a scary and dangerous area.

Traditionally, there are four separate divisions to the tort of invasion of privacy. You can fall afoul of the

law if you cast someone in a false light; if you reveal intimate details of someone's life; if you

misappropriate someone's name or likeness; or if you intrude physically into someone's private life.

The first area is vaguely similar to libel. You can cast someone in a false light in one of three ways. You

can take a factual situation and embellish it (by adding dialogue or thought patterns, for example). You

can take a factual situation and fictionalise it (the kind of thing we see in TV docudramas, complete with

actions and reactions that may not have taken place). Or you can take a factual situation and distort it (by

leaving things out, or changing the meaning). Any of these situations can lead to a "false light" invasion-

of-privacy suit.

But a key difference between libel and a false-light invasion of privacy is that the false-light tort does not

require proof that the statement is defamatory.

The second sort of privacy touches on the publication of intimate and embarrassing personal details of

someone's life. It might be as simple as reporting that a professional cricket player sleeps on a bed of

nails as a form of toughening up, or it might be a shocking revelation of the bizarre sexual preferences of

a movie star. The real problem here is that even if you are telling the absolute truth, and has photographs

and signed affidavits to prove it, the mere publication of hitherto unknown peculiar personal habits can

get you in trouble.

The third form is easier to understand. It encompasses the misappropriation of someone's name or

likeness for commercial purposes. Traditionally, that means you can't use someone's name or photograph

in an advertisement endorsing a product without that person's express permission. Lately, however, this

law has sprouted a few extra tentacles and has reached out to examine works of fiction in which real

people are used as peripheral figures. There are even arguments as to whether or not the estates of dead

people can take issue with the use of a late celebrity's name or likeness for commercial purposes. These

new applications are still fluid in our country, but if they ever firm up they could open new problem areas

for writers and publishers.

The final area of invasion of privacy has only slight potential for involving newspaper feature and

magazine article writers. It deals primarily with physical intrusion in a person's private life --

unauthorised wiretaps, trespassing on private property to gather information, seeking interviews under

false pretences, stealing photographs, unreasonable intrusion in a person's private affairs. In general,

cases are decided by punishing the unreasonable intrusion, not the publication that develops from it. But if

the publication falls in the second area--publication of intimate and embarrassing personal details--the

method in which the information was gained might be considered a damning circumstance and go against

you.

Copyright Law/Copyright protection

how it works and what it actually protects. For one thing, if you are the author of a copyrighted magazine

article, you don't own the facts contained in that article. All you really own are the words you used to

describe those facts. Facts and ideas can't be copyrighted.

There are several good reasons for a writer to do his or her best to understand copyright law, but the two

main reasons are these: First, you have to learn as much as you can about copyright regulations in order to

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increase your own protection and rights as a writer; second, you'd better understand the rights of other

writers before you start incorporating their facts and words into your own work.

In general, copyrighting an unpublished or published article is extremely simple. The law provides

automatic copyright protection for all unpublished material from the moment it is written. Material

written after March 1, 1989, which is later published, also receives automatic copyright protection. As a

result, use of the familiar copyright notice (the word "Copyright" or the symbol 0, the year the work was

created and the name of the copyright holder) is voluntary--but recommended--for such material, as is

registration with the Copyright Office. By the way, one copyright for a magazine is enough to protect all

contributions in that issue of the magazine--including your particular article.

But that doesn't hold true for newspaper writers. Under the current law, if your writing efforts are "work

made for hire," then the copyright falls to the employer. That means a newspaper reporter has no

individual protection for stories written in the line of duty. A reporter may write a book or a magazine

article on private time and get protection, but if he or she is writing as an agent of the newspaper, on

company time, the stories belong to the parent organization. That's why columnists have to get

permission before they can publish collections of their columns.

But assume you're a freelancer and that you own the rights to every original piece of work that you write.

You are not actually selling your articles to magazines or newspapers when you submit them and collect

your checks. Rather, you are licensing the publisher to reproduce your work and publish it. You are

giving the publisher paid access to certain rights.

If a magazine requests your article under these terms and you agree, you give up the right to use the

material in the same form at any later date. That means you can't sell it to anyone else for a reprint, use it

later as part of a book, or option it to the movies.

First Serial Rights

This means a magazine or newspaper (or any other periodical that publishes regularly in an ongoing, or

"serial," fashion) has the right to run your article first. After that, the rights revert to you. First serial

rights are usually designated as first North American serial rights, or first serial rights.

Second Serial Rights

This usually refers to reprint rights after some other magazine has run your article, though it also covers

first-time printing rights for a chapter or an essay from a book that you may have published.

Simultaneous Rights

This won't happen often, but you may have occasion to use it. If you have a timely article that appeals to

more than one market and the markets do not have overlapping or competing readerships, you may wish

to specify to an editor that you are submitting the piece elsewhere at the same time and offer only

simultaneous rights.

There are other terms, of course, such as world rights. Rights to the articles you have been reading in this

book, for example, were assigned to the authors as nonexclusive world rights in all languages. That

allows the authors of this book and the publisher to market around the world, even in translation, without

affecting any other rights of the original writers.

Copyright infringement

Just as the copyright law protects you from piracy of your work, it also serves to protect other writers

from misuse of their materials when you are researching a new article. The Copyright Act tries to give us

a clear picture of what constitutes infringement. It states that anyone who violates the exclusive rights of

the copyright owner has infringed on that copyright. Then it goes on to list those rights. They are:

1. Reproduction of the copyrighted work

2. Preparation of derivative works based on the copyrighted material

3. Selling, renting or lending copies

4. Performing the work in public

5. Displaying the work in public

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Basically, this means you can't pick up someone else's material and pass it off as your own. To lift

another writer's words and incorporate them into your own work is plagiarism. And plagiarism is clearly

an infringement of copyright. But infringement can take other forms, as well. Even if you paraphrase

another writer's words, but use a major portion of his or her research, construction and general thought--

enough to diminish the value of that writer's work--you may be guilty of infringement.

It comes down to a ticklish question. How much can you copy or excerpt from another writer's work

without stepping across the infringement boundary? There is a hazy doctrine called "fair use." Even

without the author's permission, copyright law allows you to copy a portion of another writer's words, so

long as you do so within reason. The problem is to determine how much is within reason.

There are no hard-and-fast rules, so you have to use common sense. But a few sections of the Copyright

Law provide some guidelines that may help you determine whether you may be exceeding the limits of

fair use. For example, consider the purpose of your copying. If you are using someone else's words for

critical or educational reasons, you may have more latitude than you would for commercial purposes. At

the same time, consider the nature of the work you are copying. In theory, you can quote more safely

from a textbook or scholarly work than you can from a popular commercial work. Also, you should give

some thought to the ratio of words in relationship to the length of the copyrighted work as a whole. For

example, 200 words from a full-length book might be perfectly acceptable, but 200 words from a 300-

word article would be outrageous. With some copyrighted materials, even a fair and sane ratio won't help.

Fair use is generally not applicable to poetry, musical lyrics, and dialogue from a play, entries in a diary,

private letters, charts and graphs, author's notes or case studies.

What about crediting your source? Will that help you avoid the onus of copyright infringement? There are

two answers. The first is: Always credit your source if possible. It is simply good manners. The second

answer: No, even if you do credit your source, it won't necessarily get you off the legal hook.

Ethical guidelines

When you attempt to fashion a system of personal ethical standards, you are embarking on a climb up the

side of a self-constructed mountain, hoping for a morally acceptable view from the top. But the view is

often murky. Ethics are a very personal thing. You set the standards for yourself. Laws, even when

hammered into a confusing jumble of vague and seemingly conflicting social ideals, are meant for

everyone. But an ethical stance can be determined by only one person, the one who intends to live within

its parameters. You break the law, and you offend society. Go against your own ethical standards, and

you offend mainly yourself.

The reason for soft codes is probably obvious. Professional journalists are extremely jealous of their

freedom. To allow some outside force to set to paper clear and usable rules and insist that they be

followed would be a direct challenge. An individual newspaper or magazine or other publication might

well create a solid set of guidelines and demand that anyone accepting work and payment from that

publication must adhere to the parent organisation's rules and regulations, but few publishers would

cheerfully accept the enforcement of rigid guidelines from outside the organisation, even if the outside

source were an amenable society of like-minded individuals.

So you come back to personal ethics, and the guidelines you will choose to enforce for yourself. Others

may make suggestions. Editors may make suggestions. Your co-workers may make suggestions. But the

only person who can force you to take the high road is you. Some of your choices may be made on

moralistic grounds. Others may stem from your political or social upbringing. You may base some

choices on the expectations of the markets for which you write. You may even make some ethical

decisions for reasons of expedience, the knowledge that to do otherwise might wreck you forever with a

particular editor or set of editors. Whatever your reasons, your decisions may make the difference

between whether you are a good writer or an untrustworthy writer.

Let's take a look at some of the ethical situations you might have to face.

Truth and Accuracy

Because you are a writer of non-fiction, this is one ethical condition that has no flexibility. Journalists are

expected to report truthfully and accurately. The truth may not always be apparent, but it's your job to try

to root it out. You'll make mistakes. Everyone does. But the quickest way to lose the respect of your

editors, your peers and your audience is to falsify information deliberately.

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As a writer, you owe a debt to your sources and to the people you write about. You can't always write

nice things about people. That isn't the way reporting works. But you can at least attempt to write fairly.

If a person has good traits and bad traits and you intend to mention the bad traits, perhaps it would be

fairer if you touched on the good traits as well.

A good way to check your material for fairness is to put yourself in the position of the person about

whom you are writing. Examine your copy as though it had been written about you. Do you consider it

accurate? Is it fair? If your answer to either question is no, maybe you should reconsider and take another

look at your selection of facts.

Doctoring Quotes

Does a writer have a moral right to tamper with someone else's words? It isn't always easy to formulate

ethical guidelines, because sometimes--as with direct quotes--you'll find several distinct schools of

thought, each with its own rational foundation. Many writers consider direct quotations to be inviolate.

Such writers stick to verbatim quotes and refuse to change a single word. And they have a large

following. Other writers are willing to dress up a quote, to change the structure entirely, as long as the

essence remains the same.

Many writers aren't willing to get that far, but prefer a middle position. They might remove parenthetical

expressions or repetitions from a subject's speech, but otherwise leave the quote as it stands. And many

writers clean up a subject's accidental bad grammar, especially if it's the kind of innocent oral slip that

we all make when talking.

When a subject uses consistent bad grammar or commits amusing linguistic muffs, some writers prefer to

leave it in as revealing of character. But if it's just a slight goof, a temporary loss of syntax that has

nothing to do with character or the meaning of the quote, most writers feel duty-bound to correct it.

On and Of the Record

Most writers don't like off-the-record material. But if your source places something off-the-record and

you listen to it without objection, then you are morally committed to keep it off-the-record. That could

cause real problems if you later unearth the same information from another source. A frequently

recommended procedure for those times when someone says, "This is off-the-record," is to interrupt

immediately and tell the source in that case you'd rather not hear it. The source can then change his or her

mind and put it on-the-record, or pass on to something else. Nor should you allow anyone to make

something off-the-record retroactively. When a subject tells you something and then says, "By the way,

that was off-the-record," you shouldn't allow it to pass. If you have consistently stuck to your guns about

not accepting off-the-record status, it will now be easier for you to say, "I'm sorry. I never listen to off-

the-record material. If you intended that to be off-the-record, you should have told me sooner so I could

warn you not to say it." You may end up with some ill feelings between you and your source, but at least

you won't feel morally inept.

Made-up names and places

As a general rule, you will not make up people or places. Other writers as well have been caught with

their imaginations showing, though not usually with such publicly disastrous results.

There may be times when invented names or places or composite people will be acceptable, even

mandatory, but the key is not to try to pass them off as real. If you want to show a hypothetical average

man, or a representative average working mother or a composite of several persons, make sure it's

obvious that they're made up. The easiest way to do this is to use Ali or Eman or some variation. Or put

the name in quotes, to signal the reader that you're dealing with "hypothetical" cases. With or without

quotes, hypothetical characters should have nice, simple names. Readers will often accept hypothetical

illustrations if they deal with plain, average people, because readers realise it could happen to anyone.

Confidential Sources

If you promise anonymity and confidentiality to a source, you have a moral obligation to live up to your

side of the bargain. Confidentiality has been with us a long, long time, and it has been extremely useful.

Without it, Bob Woodward and Carl Bernstein would never have broken a number of their important

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Watergate stories. But there may have been an erosion of trust in confidential sources. Many editors now

insist on knowing the identity of a confidential source before they will run the material that comes from it.

Suppose you have made a promise of confidentiality to a source, and your editor puts you on the spot,

demanding the name. What would you do? Live up to your agreement? Take a chance on losing your job?

Ethical crises can come in a number of forms.

Editorial Bias

While discussing the subject of interference from editors and executives in the daily reportorial process,

let's dismiss a public phantom. A number of people outside journalism seem to believe that editors and

executives go around killing stories and hiding facts that disagree with their politics or their biases. It can

happen, surely, but it's rare. Newspaper and magazine executives are usually better journalists than the

reporters they oversee (that's often how they rose to executive positions in the first place), and they are as

eager for the truth, as ready to break a story, as any writer. If you're worried about editorial influence in

your future, don't be. Most editors and executives have as high a standard of ethics as yours will ever be,

and they are not apt to influence your copy unduly. If you happen across one of the few exceptions, you

must then make an ethical choice of your own. Will you accept improper influence to protect your job?

Or will you move on to a better newspaper where such practices are not acceptable?

Pretence and deception

There will be times when you're after a story and it would be easier to get your information if you could

only pretend to be someone else. What do you do? This is another of those hazy areas that depend largely

on the circumstances and what role you wish to play. Can you pretend to be a police officer in order to

question the victim of a crime? No. Can you pretend to be a customer in order to check alleged illegal

practices at an auto inspection station? Probably. The main dividing line seems to be whether you actively

engage in deception or merely go along with pretence. If you tell someone you are an insurance salesman,

you are involved in deception--you have lied about yourself to make your position more advantageous.

On the other hand, if you attend a meeting of outraged citizens, knowing they intend to turn reporters

away, and you sit among them without paper and pencil in evidence, and they assume that you are one of

them and you allow them to continue with that assumption, have you really acted unethically? Many

people would say not. The outraged citizens might disagree, of course, once they see your story in print.

Some writers can never be comfortable in any role but the honest, obvious, straightforward presentation

of themselves as writers. Others don't mind deception if it gets good results. You must make the final

decision for yourself. And be sure your decision doesn't go against the policies of your publication.

Conflicts of interest

Newspaper and magazine writers, since they have to deal with the public day in and out, are usually

friendly people. So they make friends. Being human, they may also make enemies. If you are assigned a

story about a friend, a relative or even an enemy, you owe it to your editor and your conscience to make

that personal relationship known before you go out to cover the story. The same holds true for any

business-story assignment that involves a firm in which you hold some financial interest. You may be

perfectly capable of covering such a story objectively and writing it objectively in spite of any personal

connection, but the proper ethical position is to make sure the editor knows of your relationship in time to

reassign the story, should that be the editor's preference. After all, others may know of your personal

relationship as well, and appearances can sometimes be as damaging as actually mishandling the story.

Multiple submissions

For freelancers, a common ethical situation is whether or not to submit an idea or an article

simultaneously to more than one potential publication. The standard answer is no. Do not. Learn patience.

Send your ideas and your finished articles to one publication at a time. But there is a different stance on

this subject, which is being taken by more and more professionals in the field. It holds that editors are not

dumb, and they know that writers these days are often sending queries to several magazines at one time.

So what do you do? No one can legislate your ethics for you. You'll have to decide how to handle this

question on your own. But be aware that some editors may well be offended by the practice of multiple

queries and may not be willing to consider future article ideas if they catch you at it. On the other hand,

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maybe such unyielding editors aren't the kind you care to work with anyway. The decision is yours. As

for multiple submissions of a finished article, about the only time it is allowable is when you have a topic

that is hot, timely and important. Even then, you should notify the editors that you are making multiple

submissions.

Multiple versions

Here's another ethical situation that confronts mainly freelancers. Once you have gone to a great deal of

trouble to gather research and fresh information on a specific topic, there is always the temptation to use

your material for more than one article, giving it a fresh slant, a different construction and a whole new

set of words. Is this permissible? Generally, yes, as long as subsequent articles are submitted to markets

that are not in direct competition with the market that purchased your first version. For example, if you

worked hard to prepare a definitive article on database research and placed it with one of the leading

computer magazines, you wouldn't then turn around and rewrite the same idea for a competitive computer

magazine. Neither editor would be very happy to see the same general information appearing in the pages

of a rival magazine. However, if you sell your original version to a computer magazine, then give your

story angle a fresh twist and write a piece showing the value of database research to freelance writers and

sell it to one of the writing magazines, there should be no cause for unhappiness on the part of either

editor. You could then go on to rewrite the material for a business journal, or for a publication aimed at

librarians or scholars or historians or any other specialised magazine directed toward a non-competitive

audience of people who might benefit from your information.

Making ethical decisions

Got the idea? There are many other ethical situations that can tease your conscience: freebies, paid

junkets, personal gifts, when to use a concealed tape recorder, use of names of juvenile offenders,

breaking a story when you know it may cause injury to someone, using "leaked" information. Consult

your common sense. Anyone can tell when, for example, some minor gift from a source is only a pleasant

gesture and when it is a would-be bribe. And above all, consult both your conscience and the policy of

your newspaper or magazine.

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