The Readers Speak

Published February 2021

By SCPA Attorney Jay Bender

From the earliest days newspapers in this country have published letters from readers.  A survey of early American newspapers reveals that a large portion of the content came from the letters of “correspondents.”

The tradition of publishing letters to the editor continues, and in many instances online reader generated comment surpasses the volume of traditional print letters.  In terms of potential legal liability a distinction must be made between traditional letters to the editor and third-party comments on interactive websites operated by newspapers.

If a paper publishes a letter to the editor the content of that letter will be evaluated legally according to the same standard that would apply for news reports and editorial commentary generated by the staff of the paper.  In other words, a publisher is not protected from liability for libel, invasion of privacy or copyright infringement for any material published in the paper.  And, as if an editor or publisher didn’t have enough to worry about, there is potential liability in those special Valentine love notes that get published this time of year in your classified section.

Letters to the editor, and even op-ed pieces, are favored by papers because they provide a window into the audience of the paper.  To avoid being bitten by these well-intentioned practices, editorial decisions must be made with the same rigor that would be brought to bear on a piece written by a staff member.  But, a word of caution here, don’t edit letters to the editor or op-ed pieces.  If you find a portion objectionable because it seems untrue and defamatory, or there is some other problem with the submission, send it back with instructions for changes to be made by the author.  If the re-submission remains troublesome, reject it. While you’re at it, find out if the person whose name is on the letter or op-ed submitted it.   A paper has no obligation publish letters to the editor or op-ed submissions.  And, no, you’re not violating someone’s First Amendment rights if you decline the invitation to publish their material unless your paper is owned or operated by the government.

Moving from the legal analysis to an ethical consideration, if an editor believes a letter or op-ed piece contains false or misleading information, there is no obligation to run it.

If a reader submits a piece that makes charges against a public official that contains false and defamatory material, the paper may be able to avoid liability at trial, but the better course of action is to avoid being sued.  Ask for documentation to support claims that are made.  Be skeptical.

If a reader submits a photo, don’t publish it unless you know that the person who submitted it is the owner of the copyright.  You have probably heard of the “fair use” defense to copyright infringement claims, but notice that this is a defense to a suit against the paper.  Avoid being sued.  It is expensive, time-consuming, distracting, and potentially ruinous to be sued.  And, while we’re talking about copyright infringement, train your staff to understand that just because it is on the Internet, that doesn’t mean it can be used.  Thanks to file sharing technology and wishful thinking too many people have the notion that taking someone’s work off the Internet to use in the paper isn’t stealing.  It is stealing.  Stop your staff from stealing.

Now to those comments on your website.  I don’t like turning your website over to anyone with an Internet connection.  Your paper has spent years establishing an identity, a brand, and credibility.  Why would you want someone to post gibberish or worse on a site bearing the name of your paper?

The good news about the interactive portion of your website is that, unlike letters to the editor, federal law protects the operator of an interactive website from liability for content posted by third parties.  This is the effect of section 230 of the Communications Decency Act that has lately been in the news.

If you operate an interactive comment section on your website, you are not required to curate it.  You can leave content up or you can take it down, and have no liability either way.  Your problem with these comments will not be legal problems ultimately as any suit based on third party content should be quickly dismissed (assuming minimally competent judges), but if you allow dumb, racist, inflammatory, false or misleading content on your website I fear your credibility as a news organization will be eroded.  Feel free to applaud my political restraint as to this point of the sermon.

Stay safe. 

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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