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Correction/retraction theory

I recently read a case that had been filed against several media groups in Mississippi, but has since been “removed” (transferred) to federal court by the Defendants. Ignoring the merits of the case, the allegations describe circumstances that occur so frequently and in so many newsrooms that I thought I would use it as a peg to briefly discuss the issue of running corrections/retractions and the legal strategy behind them.

The alleged facts of this case are these:

  • According to the Complaint, in July 2015, a television station in Mississippi broadcast a picture of the Plaintiff along with his name, and announced that he was wanted by local law enforcement for burglary, sexual assault and sexual battery. (Needless to say, the Plaintiff claims they identified the wrong guy.)
  • Following the broadcast, [Plaintiff] received numerous telephone calls from family members, friends, and coworkers advising [Plaintiff] that he was wanted for charges of burglary and sexual battery and/or sexual assault.
  • In the following days, Plaintiff faced threatening and/or embarrassing remarks and public ridicule in relation to [Plaintiff’s] alleged criminal activity, including the loss of his employment.
  • Or or about July 15, 2015, [Plaintiff] was arrested for the erroneous alleged crimes.
  • Or or about July 27, 2015, after [Plaintiff] had already spent approximately one (1) week in jail, the City dismissed all charges against him on the basis that he had been misidentified.

To be absolutely clear, none of the Defendants has filed an answer. We (I) do not know whether the news organizations ran the Plaintiff’s picture and name because that is what they were given by the local law enforcement authorities or whether it was just a newsroom mistake.

I am, however, going to hijack these facts and use them for my purposes: namely, to discuss what typically happens when stations make mistakes and why there is legal benefit to running a correction (other than the moral determination that it is the right thing to do).

In most tort cases (defamation is a tort), a plaintiff has to prove actual damages in order to make a claim.

To establish a prima facie case of defamation, the plaintiff must prove that (1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.

However, “the basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation.” To be actionable, the allegedly defamatory statement must “constitute a serious threat to the plaintiff’s reputation.” Damages from false or inaccurate statements cannot be presumed; actual damage must be sustained and proved.

Thus, Tennessee courts have held that a plaintiff in a libel action must be able to show that his or her standing in the community and his public reputation for character has been injured by the inaccurate statement and, further, must have suffered real or actual damages due to that loss of standing or reputation.

Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn.Ct.App. 2001)(emphasis added).

You can see from the sections of the case that I’ve cited that proving actual damage is a key part of bringing a succesful defamation action.  In other words, it is possible that someone negligently makes a false statement about you and that you cannot successfully bring a case against them because you cannot prove that you have actually been damaged by the false statement.

So, how do we prove actual damage?

There are all sorts of different strategies Plaintiff’s lawyers have deployed to prove actual damages in defamation cases, and I will not get into them here.

The point is that once you run a correction, you are arguably putting a stop to the accrual of that Plaintiff’s damages.  This means that even if a Plaintiff can prove that you negligently published a false statement about him and that he was damaged, the amount of damage should be controlled, or limited, by the fact that at some point you began to publish that you made a mistake and that the truth is whatever it is.

I cannot understate the value of this concept.   The Digital Media Law Project (“DMLP”) has an excellent article on the law of defamation.  Click here:  link.

The DMLP also briefly addresses the fact that at least one state (Arizona) has created a “retraction” statute that seeks to control the accrual of damages.  In Arizona, an allegedly damaged party must – by statute – demand a retraction (before filing suit) or else his damages are limited.  You cannot just wait around, suffer damages, and sue for an astronomical amount.

Other than just doing the right thing, this is one of the reasons media lawyers have always advised their clients to run corrections.  It is a “mitigation” concept:  Even if they did make a mistake, and they are going to be held liable, by taking steps to get it right, they can actually control the scope of that liability.