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Image/Reputation Damage From Media News Reports: Is it Legally Actionable?

Many moons ago when I was a reporter for the New York Times, a popular crude joking analogy of “what is news” noted if a boy scout helped an old lady across the street, it wasn’t news but if the boy scout knocked her down on purpose while doing so, it was. The point is news that is negative trumps news that is positive. Another common view of this is if someone is arrested for a major crime, it is “front page” news. If and when the person is found innocent and released, it warrants a small paragraph on the back page or nothing at all (actually happens, an example later). One can say that is a sad commentary on the journalistic view of human nature (what sells papers, will generate ratings, etc.) but, unfortunately, it’s true.

So the operative question here is: “when media exposure of a negative event or activity harms the image or reputation of a person or entity, is it actionable in terms of a lawsuit?” The answer is yes and no. I’ve served as an expert witness in numerous cases relating to media reports that caused damage, representing both the plaintiff’s (those claiming harm) and the defendant’s (those that took the actions that resulted in the media reports). Let’s be clear about one thing first, the media is not the culprit and cannot be the targets of lawsuits if their reports were accurate as to the facts and there was no judgements made in the reports as to guilt or innocence. One might quibble about the extent of the coverage provided or whether it was fair or balanced but the media has a right to report the news as long as it is fair and accurate.

So let’s look at both sides, when something reported by the media wasn’t actionable by those who initiated the action reported on and when it was. Three of the cases I have worked on are good examples. First the non-actionable side.

A very prominent defense lawyer in an Eastern state was arrested for drunk driving which gets extensive media coverage because of his high profile. He sues the police department saying the arrest ruined his image and reputation and severely damaged his practice. This is obviously not actionable because it was proven he (well) exceeded the legal alcohol limit for driving and the police acted properly in arresting him (note he also was violent in resisting arrest).

In a Western state, a company that held three government contracts was accused of wrongdoing by an environmental advocate. This resulted in a six month investigation by both the government agency that issued the contracts as well as a separate ethics commission. This resulted in significant media coverage. Ultimately the company was cleared. The media coverage did severely harm its image and reputation. The company sued the government agency claiming it didn’t defend the company against the negative exposure and also restricted him it from doing so. As the government agency did not issue any information publicly about the investigation, had no obligation to defend the company and did not restrict the company from defending itself (company falsely assumed that), this too was not an actionable situation.

The best example of an actionable case I can cite happened in a Western State. A woman got a restraining order against her husband. When the police tried to serve it, he was with his two children and refused service. The order forbade him from going to their home. Not knowing what was in the order, he went to their home. The woman reported his presence and the police went to the home. When they arrived, she was outside and falsely claimed that he threw her out and the children were in danger. When they knocked on the door, he called his attorney who advised him not to let them in if they didn’t have a warrant (which they didn’t). The children were plainly visible to the police and were not harmed or in danger. A three hour “hostage” situation ensued with over 40 police and sheriff’s personnel present (as well as print and electronic media). Eventually, the SWAT team broke down the door and “brutally” arrested the man (as well as his mother who was there and legally owned the home). In reality the police committed many errors of judgement and were guilty of numerous improper actions and violating procedures. The incident received major coverage in the media for days. Five days later, all charges were dismissed. Not one word about the dismissal in the media. The man and his mother’s reputation in the community was ruined affecting both of them personally and professionally. They sued for defamation and False Light defamation among other causes of action. This a clear example of an actionable case against the instigator of an action (the police department) which resulted in the media reporting news that caused severe damage to the image and reputation of those who were harmed by it. Given the extensive negative media coverage regarding the arrest, the police further compounded the problem by not issuing a public statement of their being cleared and released.

The bottom line is this, while in most instances those who undertake actions that result in media coverage that negatively impacts the image and reputation of a person or entity cannot he sued if they acted properly in doing so, there are occasions when they can be culpable and legal libel if they acted improperly in any way. While it is human nature to want to lash out at someone you felt did you wrong, it would be wise to take a step back and take an objective and dispassionate look at the situation before acting hastily (e.g. filing a lawsuit) which can be expensive, time consuming and frankly – make the situation even worse.


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