This Article provides an overview of the labyrinth of media tort defenses, specifically the four privileges – fair comment, fair report, neutral reportage, and wire service – that come into play when the media republish defamatory content about criminal suspects and defendants without specific intent to injure. The Article then discusses these privileges in light of a hypothetical case involving a highly publicized crime and an indicted suspect, against whom charges are later dropped, but who suffers perpetual reputational harm from the out-of-context republication online of news related to his indictment. The Article demonstrates how the four privileges would operate in defense of the online news republisher and how the fault lines of these privileges would be pressured to yield to liability in light of the unusual conditions in cyberspace in contrast with traditional media, and in light of how legal norms tend to codify the social norms of journalistic practice and ethics, and of readers’ expectations. The Article concludes by calling on the media to self-regulate, rather than be regulated by shifting legal norms. Specifically, the Article suggests that news media can renew their commitment to journalistic principles and head off top-down legal reform by taking greater responsibility for online content, and by minimizing the risk of unfair process and perpetual reputational harm to the subjects of news coverage through the use of tools, such as hyperlinks, to keep content updated.
Richard J. Peltz, Fifteen Minutes of Infamy: Privileged Reporting and the Problem of Perpetual Reputational Harm, 34 Ohio N. U. L. Rev 717 (2008).