BuzzFeed may have accomplished the nearly-impossible in journalism this week, when it arguably libeled President-elect Trump by publishing a report about his alleged Russian ties. The story has been widely panned as irresponsible journalism and even labeled “fake news.”
Although the concept of libel is poorly understood by many people, media law professors such as myself know how difficult it is to prove it in a court of law, especially when it comes to a contentious public figure like Trump who has made himself fair game for nearly any disparaging remark.
Trump knows as much, which is why he proposed changing libel laws on the campaign trail. “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” he said in February 2016. “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they’re totally protected.”
While it’s true that existing laws make it very difficult to successfully sue journalists, even when they publish false information, the press is not “totally protected” from libel lawsuits. In this case, BuzzFeed may be vulnerable.
Of course, a court will ultimately have to determine whether the popular millennial news site is guilty of libeling Trump, but here’s why I think they might be.
Libel (which is also sometimes referred to as defamation and slander) is publication or broadcast of a false statement of fact that seriously harms someone’s reputation. It applies to printed statements and spoken statements, both online and offline. Additionally, the Supreme Court added another requirement for public officials: In order to hold a media outlet responsible for defamation, the person suing must show, at a minimum, that the journalist acted unreasonably.
There’s no doubt BuzzFeed met the law’s publication and identification requirements when they posted a 35-page document with information about ties between the Russian government and Trump. That’s the easy part of a libel claim.
Even though BuzzFeed did not actually produce the document – they claimed it was leaked by a foreign intelligence officer – they’re still liable for libel. As the Student Press Law Center explains: “The fact that a statement comes from someone not on the staff makes no difference. If you publish it, you own it, and if the statement is factually false and causes harm, then both your publication and the speaker may be liable for defamation.”
Where a libel lawsuit begins to get tricky is in proving that a false statement of fact was made. Opinions are protected. That’s why a judge this week dismissed a defamation lawsuit filed against Trump after he called a woman a “dummy” on Twitter.
In BuzzFeed’s case, though, many of the allegations are factual statements that could be proven to be false. For example, according to the document, while at a Moscow hotel, Trump hired a pair of prostitutes to “perform a ‘golden showers’ (urination) show in front of him.” Trump swiftly denied the report as “fake news,” as did many media critics. If Trump can show that he wasn’t in the hotel when the incident allegedly occurred in 2013, he can prove it was a false statement of fact.
Next, Trump must also show that this lie seriously damaged his reputation. Given all the nasty revelations about Trump that came out during his campaign, that may seem challenging. But being ridiculed, hated or scorned by others as a result of the false statement, especially when it involves charges of lewd conduct, typically meets the harm requirement.
Finally, Trump has one more hurdle to clear to win a potential lawsuit against BuzzFeed. As a result of the landmark 1964 lawsuit New York Times Co. v. Sullivan, public officials must prove actual malice in order to recover damages for libel. “Actual malice” is defined as “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.”
BuzzFeed arguably acted recklessly in publishing this document. It didn’t bother independently verifying the “leaked” information, which responsible journalists do, especially when it comes to allegations as explosive as those in the dossier. In an era when information moves at the speed of a tweet, getting the story out first was apparently more important than getting it right.
BuzzFeed prefaced its story with: “A dossier, compiled by a person who has claimed to be a former British intelligence official, alleges Russia has compromising information on Trump. The allegations are unverified, and the report contains errors.”
So, BuzzFeed basically told readers, “Here’s the info, you decide whether it’s real.”
Soon Trump could be deciding BuzzFeed’s fate, as libel lawsuits can lead to multi-million dollar payouts and the shuttering of media outlets.
Back in February, the future president said, “We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.” But, in this case, the law doesn’t need to be changed at all for that to happen.
Mark Grabowski is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a journalism professor at Adelphi University in Garden City, N.Y. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
