When does a journalist infringe a company’s reputation?
The press enjoy the constitutional freedom of expression and fulfil citizens’ right to objective societal information, oversight and criticism. Where is the boundary the media must not cross before colliding with the personal rights of others? Can journalists report news derived from third parties, and are they required to report only true information?
A TV programme in Poland broadcast a report stating that a company had brought hazardous waste into its manufacturing plant with the intention of using it for production of construction materials. The basis for the report was an investigation by a detective bureau commissioned by another company.
The broadcast was illustrated with passages from video recordings made by a detective using a hidden camera. The detective traced suspicious cargo on its way from a waste incineration plant, where the material supposedly originated, to the manufacturing plant, where it was unloaded. Voices of company officials (distorted to disguise their identity) were accompanied by ominous music, along with speculations and insinuations painting a picture of a company involved in illegally processing hazardous waste and using it in the production of its goods.
In the subsequent months, the company in question and other entities connected with the matter underwent a range of inspections. In administrative and criminal proceedings, attempts were made to reconstruct the events described in the news report. It was unequivocally determined that no waste was brought into the plant, and the reliability of the detective’s investigation left much to be desired. What relevance do these findings have for the responsibility of the journalist reporting the story?
In Poland, the Press Law imposes obligations on journalists directly affecting their liability to third parties. The press are required to present events accurately, and among other obligations the journalist must:
- Maintain particular care and diligence in collecting and using press materials, especially to verify the accuracy of the information or indicate the sources, and
- Act in accordance with professional ethics and principles of social coexistence, within the bounds defined by provisions of law.
The requirement for “particular” care by journalists is further-reaching than the ordinary care required in civil dealings. Care and diligence in this instance are interpreted to mean integrity, reliability, conscientiousness, specificity, and responsibility for the choice of words. Significantly, the degree of this exceptional care must be adjusted to suit the nature of the source of the information, particularly when it concerns sensational news. If the source is not very reliable, is not an authority in the field, is pursuing his own interest (e.g. commercial interest), or is emotionally involved in the matter, journalistic vigilance and diligence should be heightened.
Apart from verification of the source of the information, the following aspects are also relevant:
- Seeking out all available sources to verify the truthfulness of the information obtained
- Ascertaining the consistency of the information with other known facts
- Enabling the interested person to address the information.
At the stage of making use of the materials gathered by the journalist, it is important to present the information and circumstances of the matter thoroughly (and not selectively), and also to weigh the seriousness of the allegation, the significance of the information from the perspective of a legitimate social interest, and the need (urgency) of publication. The journalist should not prejudge the nature of the matter described and create slanted material, even if initially it seems accurate and reliable.
The form of the publication may also be relevant when assessing the fairness of how the information is used.
Does a journalist have to tell the truth?
Sometimes a journalist acts with diligence and care but nonetheless the information published turns out to be untrue. Does this mean that the journalist has unlawfully infringed the interests of the persons reported on in the publication? These doubts were resolved by the Supreme Court of Poland in a resolution from 2005 (Case III CZP 53/04), where it held: “A showing by the journalist that in collecting and using press materials he acted in furtherance of a socially justified interest and fulfilled the obligation to act with particular care and diligence eliminates the unlawfulness of the journalist’s action.” The journalist’s compliance with these obligations thus excludes unlawfulness even when the statement asserted by the journalist proves to be untrue. This is an entirely correct position, as journalists do not have the instruments and competencies at their disposal that are available to prosecutors, courts and administrative authorities. Journalists cannot be expected to determine beyond any doubt that the assertions in their reports are true.
But this does not release the journalist from the obligation to strive to present truthful information, in compliance with the greatest diligence and integrity. This is particularly relevant in the case of activist journalism, raising the alarm about undesirable activity of societal relevance. This is tied to the second aspect which should exist for the journalist’s action to be found not to unlawfully infringe the personal interests of the subject: acting in furtherance of a social interest.
In furtherance of a social interest
In the case described here, the furtherance of a social interest would be for the journalist to strive to realise the principles of transparency of public life, the society’s right to information, and to reveal and publicise an undesirable phenomenon threatening human life or health. But it would be woefully inadequate for the journalist to make a bare assertion that he is acting in the social interest simply because the topic discussed may be important for society.
Criticism pursued in the social interest is a beneficial activity when it presents facts that have actually occurred. But when the critic departs from the truth or presents facts ignoring relevant circumstances or failing to verify them thoroughly, such criticism cannot be regarded as fair, objective, and helpful. The judicial rulings concerning activist journalism take the view that it is better to withhold publication of unverified material than to publish falsehoods. Acting in the public interest means first and foremost reporting the truth; spreading falsehoods is more harmful than deciding not to report on the topic.
When mistakes are made
So where did the journalist go wrong in this case? First and foremost, he placed too much trust in the source of the sensational claim. As it turned out, the detective hired by another business (perhaps a competitor of the one of the companies presented in the report) was himself acting without due care, erroneously making fundamental findings for the case. Thus the detective was a source of information who required a sceptical approach, which the journalist lacked. The reporter accepted the detective’s findings as true, making only haphazard efforts to verify them. Nor did the journalist verify the reports about the alleged waste by following up all available sources.
The seriousness of the phenomenon described and the negative consequences that could arise if the allegations were true—for the society and for the entities involved—warranted a thorough analysis of the circumstances of the case, even at the cost of requiring more time to present the material. Haste in preparing and broadcasting the report certainly did not demonstrate diligent and careful action by the journalist. The form of the report, highlighting the sensationalism of the topic, combined with the shortcomings identified above, only add to the picture of how a reporter should not perform his duties.
Reputation of legal person
It is thus justified to state that in this case the journalist unlawfully injured the reputation of the company which was the subject of the report. And reputation (also referred to as renown or good will) is one of the interests most frequently injured by journalists in practice.
A company’s reputation is injured by information which, viewed objectively, ascribes to the company improper behaviour, potentially causing a loss of the trust it needs to properly function and perform its tasks. It can be assumed with a high degree of likelihood that information that a company was acquiring and using hazardous waste could negatively impact the company’s reputation, i.e. its perception by third parties. It is not necessary in this respect to prove that the company suffered an actual loss to its reputation. It is sufficient to show the potential for such injury.
When the topic is weighty, journalism—especially activist journalism—requires rapid action aimed at stirring an intense societal reaction. But it is also essential to respect the rights, interests and reputation of the subjects. The journalist must know how to strike a balance between these two aspects. The news reported should be true, but when it is not, the journalist will not be blamed if he can show that he acted with the greatest care and diligence, and performed his duties in furtherance of a social interest. This means thorough verification of all aspects of the matter, with all available sources. It is not sufficient to rely on someone else’s findings, particularly when they come from an unverified source. Acting in the public interest does not mean simply tackling a socially important topic, but first and foremost reporting carefully checked facts. Failure to comply with these obligations may mean unlawful infringement of the subject’s reputation, resulting in civil liability.
Dominika Kwiatkiewicz-Trzaskowska, attorney-at-law, Intellectual Property practice, Wardyński & Partners