An Overview Of Fair Report Privilege As A Defense To Defamation

Fair report privilege is one of the defenses available to journalists that have been accused of defamation. If you invoke this defense, then you are asserting that your alleged defamatory statement came from a public official or an official document. One reason the courts allow this defense is to encourage the public to dissect government activities without fear of recrimination.

For you to benefit from the fair report privilege defense, you will need to prove these three things:

  • You used the source accurately – you cannot hide behind fair report privilege after taking a few statements from an official document and padding it with your lies, or twisting the words of a public official. The judge or jury will need to be satisfied that what you published is what the source said or wrote.
  • You attributed the statement to the source – this means that the defense will not work for you if you publish the information as your own or without attributing it to the source. For example, if it was made by a senator, then you must specify that it was him or her who made the statement.
  • The statement was made in an official capacity – fair report privilege will not protect you if you eavesdrop on a gossiping public official and publish his or her words. It only applies to statements made in official capacities. For example, if a sheriff makes a statement during a government meeting, then you can publish it and protect yourself with fair report privilege. However, if you overhear him or her talking with friends at the beach, then you can't use this defense.

In some jurisdictions, the defense may apply even if you know (at the time of publishing) that your source is economical with the truth. In fact, it doesn't even matter if your source is later convicted of making the defamatory statements that you used in your publication. What matters is that you have not changed the factual nature of the information.

Unfortunately, fair report privilege is not a universal defense; it is accepted in all states except Maine. Also, what is acceptable may vary by state. For example, your state may accept some documents as public while other states may deny the public nature of the same documents. Therefore, before you publish anything you know to be false, it would be a good idea to refresh your memory of your state's laws.

If you have more questions about defamation cases, get in touch with personal injury lawyers in your area.