Legal Tools for the New Journalists
Does your Web page count as reporting?
by Bret A. Fausett
Banco National de Mexico, S.A., or Banamex, as it's more popularly known, is one of the largest financial institutions in Mexico. Banamex counts some of Mexico's largest corporations among its banking customers, in addition to hundreds of thousands of individuals. In over 100 years of history, the bank has built a solid business reputation with its customers.
Thus, you can imagine the concern in the company's corporate press relations department when the chairman and general director of Banamex, Roberto Hernandez, was labeled a "major cocaine trafficker." It was said that he had purchased his controlling interest in the bank through profits from illegal drug sales and was actively using the bank to launder profits from his continuing illegal enterprises. This is the kind of jaw-dropping, stock-plummeting allegation that wrests the attention of nearly anyone who reads it.
And that's just the beginning. The same person who made these allegations claimed to have photographic proof that Hernandez was involved in cocaine trafficking. He also claimed that the Banamex leader was destroying historic Mayan archeological sites to clear land for his illegal enterprises, using Mexican beaches to dump waste from cocaine processing, and bribing journalists and public officials to keep his criminal operations quiet and free from government interference.
All of these details emerged over a period of several months in a series titled "The Banamex Story." If true, the allegations would obviously do great damage to the bank, not to mention its individual and corporate customers and investors.
Banamex took the allegations, which it contends are completely false, seriouslyso seriously, in fact, that it filed a libel action against the publisher of the allegations in
a New York state court.
But the case didn't get very far. On a motion to dismiss, the state court ruled that Banamex had failed to plead the requisite elements of a libel lawsuit against the person who had written "The Banamex Story." In drafting its lawsuit, Banamex apparently believed that it was simply going up against some kind of nut. However, the court said that this particular individual, nut or not, happened to be a media defendant, and was entitled to the same degree of protection from libel suits as such venerable publications as the New York Times. The reason? "The Banamex Story" was published online.
"The Banamex Story" was posted in The Narco News Bulletin, found only on the Internet at narconews.com. The Narco News tagline is, "Authentic Journalism on the 'War on Drugs' in Latin America." The publication is single-mindedly focused on exposing drug lords, and those who support them, and American efforts to fight a war on drugs in Mexico.
Narco News isn't a conventional online news site. It sells no advertising, offers no products or services to the public, and has
no apparent mechanism for generating any revenue. It has neither paid writers on its staff, nor indeed, a professional staff of any kind. Although most of the articles are unsigned, the news items on Narco News are mostly the work of Al Giordano.
Mr. Giordano obviously devotes significant time and effort to the exposés he publishes as Web stories and email bulletins for his Narco News. He summarizes press releases from the White House on the war on drugs, discusses news stories that appear in foreign publications about the activities of drug lords, and provides often biting commentary on the underworld, the government, and the innocents displaced by the war between the two.
Narconews.com is, however, very much the work of an amateur. From the multi-colored text presented against a solid black background to the spinning animated GIF that constitutes its logo, the site resembles an individual homepage more than a newspaper or commercial Web site. The writing and organization are a perfect match for the design, mixing breathless prose with rambling digressions.
You'll never mistake the Narco News for
the New York Timeswhich is precisely why the court's decision is so important.
New York Times vs. Sullivan
In 1964, the United States Supreme Court issued a ruling in a case called New York Times v. Sullivan that forever changed the legal landscape for working journalists. At issue was a full-page advertisement that ran in the New York Times describing the mistreatment, by members of the city commission, of African Americans in Montgomery, Alabama.
The plaintiff in the case, L.B. Sullivan (one of the city commissioners), sued the New York Times, claiming that allegations in the advertisement were false and libelous. Among the items that Mr. Sullivan identified as false was this one:
"In Montgomery, Alabama, after students sang 'My country, 'tis of thee' on the state capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College campus."
The evidence at trial showed that, in fact, the sentence was falsethe students had sung the national anthem, not "America." Additional evidence uncovered a handful of equally unimportant "falsehoods" in the text of the advertisement.
After hearing all of the evidence, a Montgomery County jury returned a verdict
in Mr. Sullivan's favor and against the New York Times in the amount of $500,000. That's $500,000 in 1964 dollars. Not surprisingly, the New York Times appealed. The Times claimed that the Alabama court's application of the libel laws to the publication of an advertisement criticizing public officials violated its freedom of speech, even if the publication ultimately contained errors of fact.
Prior to the Sullivan case, it had long been the law that libel was not protected speech under the First Amendment. But what degree of error could a publication have before a statement protected by the Constitution became libel and defamation? Previous rulings had recognized that the "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive."
But the Court reversed the appellate court's decision, and went one important step forward in Sullivan. It expanded the media's "breathing space" by stating that a public person who brings a libel and defamation claim must prove that a publisher acted with "actual malice" in making false statements. That's a standard so high that most public figures have abandoned attempts to correct all but the most egregious media misstatements.
Banamex vs. Giordano
The allegations in "The Banamex Story" were certainly more important than those that proved false in the Sullivan case. Mr. Giordano had written that the chief officer of one of the world's largest banks was a kind of underworld drug lord, while Banamex contended that he was a law-abiding businessman. Unlike the Sullivan case, where the song that the students sang was entirely incidental in a story about state-sponsored discrimination, the fact that the Banamex chief might be a criminal was the entirety of "The Banamex Story."
In examining the complaint against Mr. Giordano and Narco News, however, the court first needed to determine whether
the two were entitled to the protections of Sullivan and subsequent cases that give additional legal protections to media defendants. If the two were media defendants, the fact that their allegations were false would matter less than whether the allegations were sincere attempts to present accurate information.
The court had little difficulty finding that online journalism, even from an amateur, was entitled to the full protection of the Constitution:
This court finds that Narco News is a media defendant and is entitled to heightened protection under the First Amendment. The Internet is similar to a television and radio broadcast in the sense that the electronic missive is able to reach a large and diverse audience almost instantaneously. However, the character of a particular Web site depends on the format and program design. A careful review of defendants' submissions on Narco News's Web site indicates that the Narco defendants' format is similar to a regularly published public news magazine or a newspaper except for the fact that the periodical is published 'on line' or electronically, instead of being printed on paper. The fact that the Narco News Web site can accept readers' comments, or letters to the editor, via a separate email address only strengthens the need for First Amendment protections for the medium. Since principles of defamation law may be applied to the Internet, this court determines that Narco News, its Web site, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper/magazine or journalist in defamation suits.
While that conclusion may seem trivially obvious to seasoned Internet users, the court's conclusion is powerful.
Having a court expressly recognize that an online, unpaid, amateur journalist is worthy of the highest degree of First Amendment protection is important for the legal precedent it sets, and also for the comfort and freedom
it gives to a new breed of journalists.
Bloggers As Journalists
Some of the best media coverage todayon everything from highly specific topics like 802.11b networking to mainstream political discussionis coming from Weblogs, or blogs as they're more commonly called.
Unlike professional journalists who move from beat to beat, bloggers are often passionate, if not fanatical, about the subjects they cover. The best blogs have a human voice and are written with a point of view. Typically, that perspective is well-informed and a product of the blogger's own experience and personal participation in the events he or she describes.
Over the last year, new tools have enabled writers to easily create blogs and, with the help of XML, even syndicate their work across other blogs, Web sites, and newsreader programs. Those technical tools won't take online journalism fully into the mainstream, however, without a set of legal tools to match.
Mr. Giordano didn't call the Narco News
a blog. But his dogged legal defense of
his online publicationa battle that the Electronic Frontier Foundation joined on
his behalfshould have a long-lasting effect on bloggers and other online writers. Even
if the Narco News allegations about Roberto Hernandez's secret criminal activities turn out to be wrong, as Banamex insists they are, the fact is that Banamex has the burden
of proving that Mr. Giordano acted with "actual malice."
Online journalists don't yet have a full set of legal tools, but we're getting there. In addition to the Banamex decision, recent cases have held that online journalists are entitled to be treated as "media representatives" for the purposes of Freedom of Information Act requests. That means online journalists shouldn't have to pay hefty search fees for gaining access to government records. This decision alone uncovers a world of possibilities.
What we still don't know is whether bloggers and online journalists enjoy the journalistic privilege of refusing to disclose one's sources when testifying under oath, and whether they have the ability to interview government officials by attending press briefings. But these decisions will come in time.
The Internet's promise has always been its ability to enable speech. But the fulfillment of that promise lies as much in social recognition of online writing's value and legal protection for its authors as it does in the tools and protocols that move words from computer to computer. Banamex is one step in the right direction.
Bret is an intellectual property and Internet attorney with Hancock, Rothert & Bunshoft. You can reach him at firstname.lastname@example.org