Media Organizations (Correctly) Worry That Rolling Stone Verdict Will Make Saying Sorry Actionable

from the that's-a-problem dept

Fri, Dec 9th 2016 11:58am — Mike Masnick

We didn't cover anything about the whole bogus story that Rolling Stone published last year about campus rape at UVA, which it later had to retract and take down. The whole thing was something of a clusterfuck, but not directly relevant to what we write about here. Eventually, it led to a defamation case filed by UVA's former associate dean, Nicole Eramo, against Rolling Stone, which was pretty interesting and resulted in a somewhat surprising loss for Rolling Stone. As we've discussed plenty of times, winning a defamation lawsuit -- especially against a public figure -- is particularly difficult (and that's a good thing). The actions need to be particularly egregious. And, in this case, the jury decided that they were. I'm certainly not going to defend Rolling Stone and its ridiculously shoddy reporting, which seemed to be confirmation bias piled upon confirmation bias.

But as some quickly pointed out, the verdict could have some serious chilling effects on media organizations -- in part because the jury found that the originally updated version of the story -- as the details reported began to crumble -- and which included an editor's note apologizing for problems with the original reporting, was viewed by the jury as a republication, and, even worse, it was that "republication" that met the "actual malice" standpoint needed to get over the defamation bar.

This is problematic.

It was the original reporting that was bad. The apology was good. Yet, the way the jury ruled, Rolling Stone would have been better off not apologizing for the error and not adding the editor's note to the story. That seems crazy. And thus, the Reporters Committee for Freedom of the Press (RCFP) and eight big media organizations (including the Washington Post, who was the publication that first exposed many of the problems in the Rolling Stone article) have filed an amicus brief with the court raising this issue (found via Eriq Gardner's excellent reporting at THREsq).

The argument is pretty straightforward. Creating a chilling effect on correcting stories and apologizing for errors is really, really bad.

Journalists have always had a commitment to ethical standards by assuming responsibility for their errors and setting the record straight. Being accountable to the public by updating stories as needed is one way to reassure readers that the news media are dedicated to accuracy in their reporting. As proof of the power of corrections and their contribution to reputable journalism, a 1998 study conducted by the American Society of Newspaper Editors found that 63 percent of newspaper readers “‘feel better’ about the quality of the news coverage” when there are corrections....

[....]

In the case of news published on the Internet, the news media can more quickly and meaningfully provide more in-depth modifications and updates than in the traditional print context. An explanation of a mistake can be made at any time in the same place as the original article, where the same audience is more likely to see it. In addition, “[d]igital publishing has made it possible for editors not only to scrub or enhance stories as they develop but also to pull back the curtain – to make sure readers see and understand what they’ve done.”...

[....]

Numerous high-profile examples show that the tradition that has developed in online journalism is to leave a controversial story on the website while noting the problems with it. Adding an explanation by no means indicates that the publishers are supporting, reaffirming, or republishing the facts of the original story. On the contrary, they are preserving the record of what was previously written while adding greater context

Indeed, this is the same policy we take at Techdirt. In the cases that we've made serious mistakes in our reporting, we leave up the original, but with a prominent correction and apology. That shouldn't be seen as a "republication" and an admission that the republication was malicious. That's clearly a bogus interpretation and very problematic. It's much, much worse to simply disappear an article with errors or problematic reporting, because that's hiding things, rather than being more open and transparent. We make fun of the publications that simply disappear such stories.

Because correcting false statements in an article, even short of retracting the entire article, will often be considered a mitigation of damages or evidence of lack of malice, responding to new information and posting updates are clearly encouraged by courts and seen as a positive act. Allowing the attachment of an editor’s note to the original article, which backs away from claims in that publication, to constitute a “republication” is thus inconsistent with clear public policy interests in encouraging greater explanation as stories develop.

Hopefully the court reconsiders this issue -- otherwise, one hopes that an appeals court, or even the Supreme Court will take up this issue on appeal down the road. Publications shouldn't be punished for admitting to mistakes. That would seem to go against all common sense.

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Filed Under: apologies, corrections, defamation, nicole eramo
Companies: rcfp, rollingstone

25 Comments

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Reader Comments

The First Word

“

Not really

This was a bad situation and should have been an instant retraction, not an editors note.

The apology was basically nothing. They kept the story up, because they wanted the traffic, and added a little tiny bit about "oh by the way, we're sorry".

They SHOULD be liable. And it SHOULD send a message. SEVERAL actually.

One. Do REAL journalism, not this made up, activism "journalism". You know, where you have actual, verifiable FACTS. (Remember who, what, when, where and how?!)

Two. If you screw up, don't leave the story up to keep getting traffic or to be controversial. Take it DOWN. Write the apology and put it where the story USED TO BE.

They are getting what they deserve after that despicable excuse for journalism. And I hope it DOES have a chilling effect - a chilling effect on bad journalism.

—John Cressman

”

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That One Guy (profile), 9 Dec 2016 @ 11:58am

All the wrong incentives
...in part because the jury found that the originally updated version of the story -- as the details reported began to crumble -- and which included an editor's note apologizing for problems with the original reporting, was viewed by the jury as a republication, and, even worse, it was that "republication" that met the "actual malice" standpoint needed to get over the defamation bar.

They updated the story to be more accurate, only to have that used against them, such that as the article notes they would have been better off leaving the original, incorrect story up unchanged... Yeah, hopefully the courts reverse this one, because the incentives are completely dead-backwards here, people shouldn't be punished for updating things for accuracy, as otherwise this ruling is basically saying that if you get details wrong don't correct them, leave them as-is.
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killthelawyers (profile), 9 Dec 2016 @ 12:09pm

Re: All the wrong incentives
I haven't formed an opinion on this case because I'm not familiar enough with it, but I'll argue that this creates good incentives, too. As a good incentive, this incentivizes *not* doubling down. Rather than issuing a non-apology apology with only minor changes at the top of the story, thus spreading a badly flawed story further, it incentivizes either correcting story in-line or removing the story entirely, with only an apology in its place. Said another way, it incentivizes the truth over journalistic integrity. Whether this is a good development or not, I have no clue. Probably not, if I'm spitballing. However, it's not entirely a bad thing, either.
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John Cressman, 9 Dec 2016 @ 12:22pm

Not really
This was a bad situation and should have been an instant retraction, not an editors note.

The apology was basically nothing. They kept the story up, because they wanted the traffic, and added a little tiny bit about "oh by the way, we're sorry".

They SHOULD be liable. And it SHOULD send a message. SEVERAL actually.

One. Do REAL journalism, not this made up, activism "journalism". You know, where you have actual, verifiable FACTS. (Remember who, what, when, where and how?!)

Two. If you screw up, don't leave the story up to keep getting traffic or to be controversial. Take it DOWN. Write the apology and put it where the story USED TO BE.

They are getting what they deserve after that despicable excuse for journalism. And I hope it DOES have a chilling effect - a chilling effect on bad journalism.
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radix (profile), 9 Dec 2016 @ 12:26pm

I saw the original version of this story before the (silent) correction. You should at least acknowledge the mistake with a "sorry" or something.
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Christopher Best (profile), 9 Dec 2016 @ 12:31pm

What apology?
Unless there's an apology I'm not seeing, all I remember was a note from the editor that said "We should've talked to the Fraternity before publishing." Nothing was said about the Dean.

I could definitely see how a casual reader could read their "apology" and assume that the only thing they should question was whether "Jackie" was raped, but still assume her account of the supposed coverup was credible.
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Anonymous Coward, 9 Dec 2016 @ 12:50pm

Re: Not really
I think a few things are being conflated here.

If there are errors with a story, it makes sense to place an edit banner at the top and highlight any changes that needed to be made, and make those changes in-line.

If a story is just plain incorrect, it should be *replaced* with a retraction, with a non-indexed link to the archived story, which should also have an edited header making it clear that the story is false, and have a link back to the retraction.

That way, the incorrect story is no longer monetizable.

I'm unsure of the details of this case as to which category it would fall into, but it sounds like RS did neither of these things, and instead kept the story as-is with a rider that apologized for it. That is distinct from both of the methods I listed above, and is just bad journalism.
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Bruce E (profile), 9 Dec 2016 @ 12:54pm

Eh?
Now that story about Canada creating a law making it so that saying sorry can't be used in a lawsuit as an admission of guilt doesn't sound so silly now, huh?
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Anonymous, 9 Dec 2016 @ 1:02pm

Not quite sure about this...
There appears to be a difference between the way that you approach a mistake and the way Rolling Stone did. Looking at the Internet Archive Wayback Machine, Rolling Stone left the entire article up with a message at the front of it.

But when you make a mistake, you generally would admit that in a follow up article and update your original. You post "We were wrong" type posts.

Yes, Rolling Stone changed this one article, but they don't appear to have changed a number of other articles that referenced the original one and built on it, and you would have had to go back to the original to see the retraction. It wasn't posted at the top of the news in a prominent place. You'd have had to go digging for it.

I think this goes to the issue of a "prominent correction and apology". Is it truly prominent if it is attached to one story almost a month old, and not highlighted in the main news feed?

I am certainly no expert on US Defamation Law, but I do think there are differences in the approach, and perhaps that is what the jury was concerned about.
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DB (profile), 9 Dec 2016 @ 1:31pm

This was a false news story by a highly regarded publication
When this story was first published, it was Big News. It was widely referenced as the perfect example of deeply rooted institutional problem.

The people involved stated that it was wrong, but "of course they would say that".

Only the excellent investigation by the Washington Post revealed that the story was completely fabricated. Without the credibility of a major newspaper, the innocent people involved would have the lies follow them for the rest of their lives, with no way of proving their innocence.

The Rolling Stone did double-down by issuing only a slight correction, and stating that the core of the story was true. It took multiple articles before they acknowledged that it wasn't just one-sided reporting, but that the entire story was false.
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Anonymous Coward, 9 Dec 2016 @ 1:38pm

I haven't paid too much attention to the details of the whole debacle, but I think part of the problem is that the story was the sort of thing that basically demanded a flat out retraction as soon as it came to light that they'd failed to do proper corroboration of the girl's tale. Instead they published the most minimal apology/correction as they could while basically otherwise standing by the article. They updated their editor's note a time or two as more holes in the story were found, but it was months before they actually retracted it, and acknowledged that it was a mistake to have published it in the the first place.
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Mike Masnick (profile), 9 Dec 2016 @ 2:23pm

Re: Not really
The apology was basically nothing. They kept the story up, because they wanted the traffic, and added a little tiny bit about "oh by the way, we're sorry".

Sure, but the legal issue here is important. If they hadn't retracted the story or put up the editor's note, they wouldn't have been liable. Do you at least see how crazy that is? They only got in trouble because of the apology?

They SHOULD be liable. And it SHOULD send a message. SEVERAL actually.

Again, that's easy for you to say, but the reality is that it's a lot trickier than that. It was bad reporting, absolutely. But the issue here is the apology alone.

One. Do REAL journalism, not this made up, activism "journalism". You know, where you have actual, verifiable FACTS. (Remember who, what, when, where and how?!)

There are serious First Amendment issues with your suggestion here that "activist journalism" isn't real journalism. That's very, very wrong.

Two. If you screw up, don't leave the story up to keep getting traffic or to be controversial. Take it DOWN. Write the apology and put it where the story USED TO BE.

Again, there are serious journalistic issues with doing that, because you are deleting the history of what happened, and that has its own problems.

They are getting what they deserve after that despicable excuse for journalism. And I hope it DOES have a chilling effect - a chilling effect on bad journalism.

Yeah, but because you're so angry about this article you don't seem to give two fucks about the real issue here and the impact it will have on good journalism.

Don't let your anger blind you to the real issue.
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Anonymous Coward, 9 Dec 2016 @ 2:25pm

Rolling Stone should be liable - but not because they edited the story to add a correction. (Unless it was the correction itself that was false.) If the correction was insufficient, then perhaps it shouldn't be used as a mitigating factor, but it certainly isn't a republication.
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Anonymous Coward, 9 Dec 2016 @ 3:11pm

Re: Eh?
If Canada made saying "sorry" a legal admission of guilt, the whole country would be in prison. The incompetent trust-fund PM and his whole "current year" feminist cabinet included.

Germany has been saying "sorry" for 75 years and it's leading to another mass genocide. Sweden doesn't even have anything to apologize for but they're even worse.

Maybe us 'murricans aren't so bad after all in simply moving on from our mistakes without groveling for forgiveness. Give an inch and they'll take the whole land.
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Anonymous Coward, 9 Dec 2016 @ 3:16pm

Re: This was a false news story by a highly regarded publication
What bothers me is why these outlets that otherwise don't have anything to do with politics or current events, have all of a sudden taken it upon themselves to get involved with politics and current events.

Maybe they should go back to writing about music instead of jumping aboard the gamergate bandwagon, just like ESPN ought to go back to broadcasting sports and shut the $%&! up about race.

I'm not saying they should be required to by law. Just that maybe it's a savvy marketing decision to stick to your original format, and leave the fake news to the fake news guys like CNN.

I mean, when I read Good Housekeeping, I don't want to read a jeremiad about the plight of homeless Syrian refugees and all the complicated geopolitical decisions that got us to this point and what should or shouldn't be done about it from this point on. I want to read about decorative couch pillows.

Something to think about in this heavily oversaturated market where literally everything has become a referendum on politics now. Just go back to covering aging rock stars' reunion tours and keep the controversy to a minimum.
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Anonymous Coward, 9 Dec 2016 @ 5:44pm

Re: Re: Not really
Do you at least see how crazy that is? They only got in trouble because of the apology?

If the last few years have taught me anything, it's that apologizing for your mistakes and shortcomings is a dumb move. Apologizing is not only an acknowledgement that you've fucked up, it's also a billboard inviting everyone to fuck you even harder for your errors. If you choose to double down instead, you can always argue a "good faith" position and there will be people who will offer you unquestioning support for it.

It's silly, but that seems to be the path we've been on for a while.
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Anonymous Coward, 9 Dec 2016 @ 6:03pm

The media tries to placate both sides and in the process loses the truth and gains the public's contempt. This is bad for all of us and I have no clue what the answer is. But taking this jury result and gawker's and combine that with a wildly dishonest President with authoritarian tendency and we are continuing down the road to deep shit.
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IAmNotYourLawyer (profile), 9 Dec 2016 @ 7:48pm

Subsequent remedial measures
There's a legal doctrine of subsequent remedial measures, where repairs or improvements can't be used to show negligence, defects, etc. One policy rationale is that society doesn't want to discourage fixing a problem if the fix itself is used as proof of liability.

See https://www.law.cornell.edu/rules/fre/rule_407

While the doctrine doesn't necessarily apply to defamation, the same policy consideration is at issue.
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Anonymous Coward, 10 Dec 2016 @ 1:53am

Re: Re: Eh?
"Germany has been saying "sorry" for 75 years and it's leading to another mass genocide."

How so?
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nasch (profile), 10 Dec 2016 @ 10:30am

Re: Re: All the wrong incentives

As a good incentive, this incentivizes not doubling down. Rather than issuing a non-apology apology with only minor changes at the top of the story, thus spreading a badly flawed story further, it incentivizes either correcting story in-line or removing the story entirely, with only an apology in its place.

I disagree, I think it incentivizes completely deleting the story and replacing it with nothing. That's clearly the safest option after this ruling.
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Anonymous Coward, 11 Dec 2016 @ 2:58am

Re: Re: Re: Eh?
He probably means the White Genocide nonsense as a result of policies accepting illegal immigrants in Germany - that German culture is in danger of being replaced by that of outsiders and this equals "genocide".

Personally, I think at some point it will lead to some blood being spilled (as usual). It probably won't be German blood however.
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Anonymous Coward, 11 Dec 2016 @ 4:24am

Re: Re: Re: Re: Eh?
What makes you say that? Given how willingly the Germans appear to accepting what's happening...
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Anonymous Coward, 11 Dec 2016 @ 8:19pm

Re: Re: Re: Not really
While this may be a truthful set of observations, I disagree it being a desirable course of future actions or policy.

This is precisely the kind of thinking that the court opinion needs to re-consider.
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Anonymous Coward, 12 Dec 2016 @ 1:43am

A tough one to call.
I've never felt entirely comfortable with story updates that simply leave a note at the top of the article stating that the article that follows is basically now known to be untrue.

I feel that there needs to be something more there. I would probably say that I would be much more comfortable with a solution where the original article was hidden behind some kind of click-through; i.e. the only visible text on the loaded page is the correction/update, and below that is a box of some boilerplate saying "Below lies the original text of this article; this publication can no longer stand by the statements made herein, but we preserve the original text for the historic record. Please click here to view the original article." and then probably a second interaction to force the user to acknowledge that they understand they're viewing a retracted article.

There really is a qualitative difference between newspapers (which are published once) and websites (which are published every time a page is loaded).
A newspaper's apology/correction is a statement that last week's story was wrong. A website's in-page correction needs to be more substantial than a simple "update" notice if it's going to include (republish) the text of the original, incorrect article along with its correction.

I do appreciate the points you make in this article, Mike —publications must be able to publish corrections to their stories without being punished for it— but the current system (the one you use here on Techdirt) just isn't good enough for me.
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Wendy Cockcroft, 12 Dec 2016 @ 7:56am

Re: Re: Re: Re: Not really
Agreed. It's a shame Eramo didn't go for them based on the original story, which completely trashed her reputation and presented her as being more interested in protecting the university than in protecting victims of abuse. That's real harm that can and does impact her life in a real way; people tend to believe what they read in the press.

The apology was okay but they really should have led with it and taken the original down; there's no real value in leaving it up. That would have gone some way towards mitigating damages against them by showing remorse.

While it should be hard to launch defamation cases it's not okay to ruin someone's reputation for either clickbait or "truthy" activism purposes. While Eramo comes across as a tough cookie there's no good reason to tell lies about her and expect her to take it on the chin because she's a public figure. That's not okay.
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crade (profile), 12 Dec 2016 @ 9:21am

Re: Not really
This is a gov't certified excuse to try to make your mistakes disappear instead of owning up to them.
Not only that, but it should also chill other people from truthfully reporting the article that you had up in the first place to show how lousy a reporter you are.

What shows in search results is not the responsibility of the author of that article. If the apology wasn't good enough, or the original mistake was bad enough that the apology doesn't make up for it, then crack down on them for those things. Don't crack down on them because they didn't try to cover up what was published.
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