A Guide for American Lawyers to Prepublication Review of European-Based Publications

By Charles J. Glasser, Jr.*

I.          Introduction^

A German newspaper points out accurately that the Chancellor dyes his hair. A Spanish television station broadcasts footage of a famous bullfighter dying in the ring’s infirmary. A French restaurant review says there is “too much spice” on a prawn cocktail. Each and every one of these real-life situations has something in common, unheard of in the United States: they all resulted in liability for the press.

The purpose of this article is to provide US-based lawyers with a brief sense of how different the pre-publication process is with regard to non-US publications, because of the differences in Free Speech theories and the different approaches to constitutional balancing of free expression rights against reputational interests.

For reasons of time and space restrictions, this note will focus on the overview of the laws in England, Italy, Spain, France and Germany, which are fairly representative of the law throughout the EU. I would strongly recommend perusing the “International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters, and Lawyers,” and consulting local counsel, time permitting.

While it’s true that various federal and state statutes prohibiting the enforcement of foreign libel judgments that do not comport with First Amendment principles have been adopted,[1] and these laws are supported by previous cases such as Matusevich,[2] this is sometimes little comfort to American news media publishing in foreign jurisdictions. Most global news operations have assets – both human and fungible – abroad. Preparing for a legal battle based on jurisdictional challenges is impractical when reviewing fast-breaking stories published in Europe, if your client has a bureau in a foreign country.[3] In that same vein, the cross-border enforcement of judgments in the EU makes depending on a default judgment a risky proposition in many instances.

Effective prepublication review requires an understanding of the motive engines behind other nations’ media laws. This does not mean that one should withhold publication of accurate news in the public interest for fear of a foreign suit, but instead requires thoughtful newsrooms to be able to defend the accuracy, precision and public interest of any article published anywhere.

This elementary guide should not be considered a substitute for consulting local counsel, particularly when an article raises very serious allegations. This is even more the case when it is the product of long-term investigative reporting and there is enough lead time to have local counsel review the article prior to publication. A good relationship with local counsel is invaluable, not only for the ability to vet longer, investigative pieces, but as an emergency contact for bureaus. Not only must local counsel be advised immediately of service of an order of prior restraint, but several Western European nations have confusing and detailed “right of reply” statutes, and formal demands made pursuant to those statutes are time-sensitive and must be handled swiftly.

II.        Understanding Speech, Law and Society in Various Nations

The key to successful prepublication review in Europe is understanding the standards of liability against which your stories will be judged. These standards of liability are very different from U.S. standards. Assuming that publications in Europe will be protected by First Amendment-like protections can be a dangerous mistake.

An important caveat for American attorneys to remember, especially those familiar with the Anglo-Australian model of accepting libel claims against poorly researched articles as a business cost, is that libel is also criminal matter in much of Continental Europe.

In those instances, complaints are brought first to a prosecutor, who has considerable discretion in most countries to decide whether or not a prosecution is possible. It is worth noting that the political or financial assets of the putative claimant has great bearing on the likelihood of a prosecutor taking the complaint seriously, or determining how aggressive he or she will be.

Spiriting your reporter away to safer shores may not suffice: in France, Italy, and Spain, the bureau chief, office manager or other person deemed to be a company representative is required to submit to criminal indictment and may be subjected to arrest, even for stories he or she did not write.[4] While the punishment for libel is most often only a monetary fine and not prison, criminal proceedings by their nature are a humbling if not humiliating experience for journalists and media companies to endure.

It is important to understand the philosophical and cultural engine that generates Europe’s different legal standards of liability relating to media issues. The jurisprudence of American media law flows from a simplified Millsian justification: the truth is not known without false speech to compare it to.[5] This is reflected in Justice Holmes’ oft-cited “marketplace of ideas.”[6]

By contrast, most European media law is not philosophically or culturally rooted in the same ground. The tradition of newspapers in Europe is decidedly partisan, with a history of political party and religious affiliations. Because the European press is typically partisan, openly driving an agenda of one sort or another, it has not adopted the familiar American role of the press as independent and objective servant of the public interest.

III.       The Codified Recognition of Dignitary Rights versus Rights of Free Expression

Although some European nations make passing constitutional reference to freedom of expression, these same nations variously recognize “honor, reputation or personal dignity” as constitutional or statutory rights guaranteed to citizens.[7] The key point for American media lawyers to remember is that these dignitary rights are in equipoise to the rights of free expression. In most of Europe, dignitary rights are given equal weight as free speech guarantees and there is no true analog to the First Amendment in Europe, insofar as in most cases free speech is not presumed to trump dignitary rights.[8]

European law raises the bar for the press, and asks that reporters actually do more to ensure accuracy. In fact, the harm to dignitary rights that can be inflicted by publication in mass media places a higher duty of care on reporters than on ordinary citizens.

In France, Section 29 of the Law of 29 July 1881 codifies an interest in “the honor or consideration in which a person or institution is held.” In Italy, Article 2 of the Constitution explicitly protects a person’s “dignity and honor,” and similarly, Spain’s Organic Law of May 5, 1982 protects the right of honor, personal and family privacy and freedom from injury of reputation. Germany’s Constitutional Articles 1 and 2 are designed to safeguard an individual’s rights to dignity and personality rights.

Once litigation has commenced, the common theme in Western European media law is that the press must first justify a potentially defamatory article by reference to the public interest; and only if satisfied may judges then apply privileges or standards other than strict liability. In sum, accurate, precise and important journalism that serves the public interest is the only reliable defense from a prepublication standpoint. Thus the prepublication lawyer must read news articles like a careful editor.

Moreover, it is crucial to keep in mind that Europe generally rejects the American notion that the public interest is determined by whatever editors decide is newsworthy.[9] Judges often insert themselves into the role of “supereditors” and instead European law generally focuses on whether a publication serves the public interest – a narrower and more objective standard – and this narrow scope of public interest in Europe bears some brief review:

Italy

Public interest is defined as “social utility” and judges must consider such usefulness in the article in question before the constitutional protection of free expression may be applied.[10]

The news must be “socially useful” and Italy’s highest court has held that without such usefulness, it is unacceptable to sacrifice the reputation of an individual. Mere gossip has been rejected as having social utility, despite the notoriety of the subject, and courts take what they consider an objective approach to this determination.

For example, an article about an alleged relationship between a female journalist and the President of the Republic was considered illegitimate and the public would realize no social utility from being informed of this relationship.

France

Matters of national security, public health, public order, or government services have all been found to be within the ambit of a public interest defense. Similarly, revelations about a public figure’s personal finances may be in the public interest if it impacts the use of public funds or public policy.

However, this is merely a threshold analysis, not a complete defense, and French courts still require an article –-- even if in the public interest –-- to evidence honesty, caution and careful fact-checking

England

The new UK Defamation Act, which is not yet in force, creates a new statutory public interest defense to defamation claims. Public interest is not defined in the statute, but will likely be interpreted in light of recent case law which emphasizes that judges, not editors, should decide what constitutes a matter of public interest in defamation cases. [11]

Germany

German law holds that reporters seeking to escape liability for publishing defamatory articles must be acting to “safeguard legitimate interests.”

Courts review the “importance of the article to the general public” in making this determination.

German law has recognized the public interest in articles about organized crime, military issues, environmental matters, and historical or political issues. H owever, the public interest privilege will be denied when the article is viewed by the court as less informative than an attack on human dignity.

As in other European nations, service of the public interest is not an absolute defense, and is weighed against the reporter’s “journalistic caution evidencing meticulous research into the truth of the allegation.”[12]

Spain

The Spanish Constitution has been read fairly broadly to provide some degree of comfort to reporters whose stories serve the public interest. Nonetheless, in application, Spanish courts require that the article in question have public relevance.

In what is as close to an American approach as can be found in Europe, Spain accepts that persons who live in the public spotlight cannot be allowed to “redraw their sphere of privacy.”

Spain still requires an objective determination that an article serves “an important prevailing historical, scientific or cultural interest.” (Sp. SC 192\1999).

The formal recognition of dignitary rights in European law, and the fact that it is in equipoise with free speech guarantees is most easily seen in the: 1) breadth of defamatory meaning; 2) burden of proof and limitations on proof of truth; and 3) limitations on, or absence of privileges.

V.        Defamatory Meaning in European Nations

In all European nations, the coterie of defamatory meaning is expanded beyond those types of statements which may be potentially actionable in the United States, such as imputation of criminal acts, professional incompetence, dishonest or unethical conduct and the like.

Europe’s definitions of defamatory meaning are vague and wide sweeping and almost any negative comment may become the springboard for litigation. Standards for defamatory meaning are described below; the notable examples are added to provide examples of statements that may be innocuous in American law but are in fact potentially defamatory in some Western European nations.

One notable example is the injudicious use of the word “fired.” In America, people are commonly “fired” for any number of reasons, encompassing layoffs and wrongful termination, both of which carry no obvious defamatory sting. In Europe, labor laws make it so difficult to arbitrarily fire someone or lay them off, that the public perceives “fired” as an allegation of wrongful conduct or incompetence. This is a good example of how cultural differences can change the meaning of words or phrases, rendering them defamatory.

Italy

Statements that may “injure the esteem” in which the offended person is held by his community.

Product disparagement is only recognized as a claim brought against competitors under unfair competition laws.

Italian law recognizes libel-by-implication (“allusive defamation”) and libel-by-inaccurate quotation.

Notable Examples: inaccurate report of a business’ impending closure; incorrectly identifying an attorney as a certified public accountant; and describing a person as “having the glance of a hired killer.”

France

Any allegation or imputation of a fact that is contrary to the honor or to the consideration in which a person or an institution is held.

Law recognizes libel-by-implication (“imputation”).

Generous analogue to the “of and concerning” requirement called “libel par ricochet” in which groups may assert standing in a libel claim. Also, product disparagement claims are said to impute the provider of inferior goods or services, and that provider may usually bring an imputation claim, even if the article is focused only on the goods or services at issue.

Explicit rejection of cautionary phrases like “allegedly” or “we have heard that.”

Notable Examples: accusation of owning firearms implied membership in right-wing paramilitary group; statement that a café was the “kind of place where Mafiosi, lawyers and politicians could clink glasses” found defamatory.

England

Various definitions are applied, ranging from simply “a statement to the plaintiff’s discredit” to the more familiar “statement that causes [the claimant] to be shunned or avoided, or exposes him to hatred, contempt or ridicule.”[13]

Product disparagement is brought under the claim of malicious falsehood, which unlike libel claims in England, requires that the claimant prove falsity.

Law recognizes libel-by-implication and libel-by-omission.

Notable Examples: calling an actor/film director “hideously ugly”; calling a person a “fanatic”, or “wanting in gratitude”; calling a doctor an “abortionist” even though he in fact performed such procedures, because of the pejorative sting of such a phrase.

Germany

German law recognizes three types of statements which violate honor:

Insult (Beleidigung) which is a false statement that need only be published to the subject;

Slander (Ulbe Nachrede) which is a statement that lowers the subject’s estimation to right-minded members of the community; and

Malicious defamation (Verleumdung) which is a slander made with knowing falsity.

Law recognizes libel-by-implication, particularly in cases where a subject is libeled by juxtaposition to a public issue or the mere inclusion of his name in a story about defamatory subjects.

Product disparagement is often recognized as a libel upon the provider of the goods or services in question.

Limited recognition of group libel, particularly in the “hate speech” category.

Notable Examples: Describing an executive as “fired” or “dismissed” instead of “stepping down” or “resigning”; describing a shrewd businessman as a “shark”; claiming that a restaurant’s coffee “tastes like hair tonic.”

Spain

The Spanish Criminal Code defines two distinct types of offenses against honor:

Slander, which is simply any statement that Ainjures the character or reputation of the person defamed; and

Calumny, a form of aggravated slander that imputes to the subject the commission of a criminal offense.

Libel-by-implication is recognized.

Product disparagement is only recognized as a claim brought against competitors under unfair competition laws.

Prevalent view is that corporations do not have standing to sue for an offense against honor.

Words of disclaimer such as “it is alleged” or “it has been reported that” are explicitly rejected as shielding liability.

Notable Examples: Allegations that a football executive “manipulated public opinion”; referring to financial institutions as “a gang of swine”; statements accusing persons of belonging to an extremist political party; allegations that an executive was “fired” rather than “resigned.”

Note that privacy claims are also treated as an offense against honor: broadcast images of a mortally wounded bullfighter dying; nude pictures of famous actress were both held as damaging to right of honor under the Spanish Criminal Code.

IV.       Fault Standard, Truth & Privileges

In most of Continental Europe, the burden of proof regarding truth or falsity lies with the press: sued upon news stories are usually presumed false. For this reason, reporters making potentially defamatory allegations should be prepared to show editors and newsroom lawyers the documents or source material that will justify the allegations.

Making this an even more difficult task is the fact that privileges are narrowly drawn and stingily applied: the documents and sources upon which you are relying may not carry the day. Also note than several European jurisdictions, such as France, will not allow a justification of truth defense based on material culled after the publication, and limit such defenses to material in the reporter’s possession prior to publication.

Italy

Fault Standard: Did the Reporter Exercise “Reasonable Prudence and Skill”?

Provided that an article is in the public interest, a journalist will be released from liability if the news turns out to be false only if he proves that he acted diligently. It is worth noting that the Italian courts have rejected reliance on other news agencies, rumors heard in legal circles, and unofficial reports issued by police agencies.

The credibility of a single news source is not an extenuating factor, although it is one of the parameters used by judges in determining the standard of diligence applied. The greater the extent of fact-checking, the more likely the article will be protected.[14]

Requirement of Social Utility and Moderation in Tone

The Constitutional Court not only requires social utility in order to qualify for the application of a negligence standard (discussed supra), but also requires that any article maintain a “civil form” of the exposition of facts. Also referred to as “the criteria of moderation”, a publication is considered uncivil, and consequently the information is considered libelous, when it either:

  • exceeds the proposed aim of providing information;
  • is not calm and objective;
  • tramples that minimum amount of dignity to which all individuals have a right; or is not characterized by sincere clarity.[15]

Failure to satisfy both the social utility and moderation requirements will result in strict liability for defamatory statements.

Truth as a Defense in Italy

Italy has adopted a presumption of truth in libel cases,[16] but this defense is subject to limitations. Without satisfying the public interest, a defamatory but truthful statement is nothing more than malicious gossip and is thus actionable.

Italy has not yet adopted an analog to the “substantial truth” defense, and the Supreme Court has said that “half-truths are more dangerous than the exposition of individual falsehoods” on account of the greater ease with which reporting or hearing a report of a patently false fact, rather than a true but incomplete fact, may be defended.[17]

Limitations of Privileges in Italy

In the Italian legal system, there are no privileged sources that could release the journalist from his duty of: a) examining, controlling, and verifying the facts he relates; or b) proving the care that he exercised in verifying the facts to remove all doubts as to the truth.[18]

As mentioned earlier, there is no analog to a “wire-service defense”: “We may now unhesitatingly affirm that a journalist may not in any case invoke the appearance of the news item in another newspaper or agency press release as an extenuating circumstance.”[19]

The right to report on documents in legal proceedings stems not from a privilege, but instead from what courts would consider the prudence and skill of a journalist, who, covering a legal proceeding would be expected to read the pleadings in the case. This standard requires reporters to carefully scrutinize the source documents.

In addition, Italian law considers very few government documents to be “official”: Government agencies are governed by specific rules for reporting their activities, outside of which information shall not be considered official. A government regulation, legislative hearing or court opinion would likely be treated as official, not so a government official’s press conference.

Second, absent an official document privilege, courts will invariably look to a newspaper’s due care in repeating defamatory statements contained in court and government documents, such as providing an opportunity to respond. Moreover, courts require that news articles about criminal cases “respect the principle of the presumption of innocence” which demands both greater rigor in verifying the truthfulness of the news item and in reporting the facts in a problematic way or, at the very least, warning the reader that the facts are still being investigated.

Other restrictions include restrictions on the media’s ability to report information related to ongoing criminal investigations, which are considered secret. Facts about investigations may not be published until the defendant has received legal notice. Italian law and the Italian Code of Ethics also prohibit the publication of the name and other identifying facts about minors, even if introduced into open court: The minor’s right to confidentiality must always prevail over the right to report news and criticism.[20]

France

Fault Standard: Did the Reporter Act in Good Faith?

Ostensibly, French law would seem to parallel America’s pro-media protection, given that it recognizes a privilege for errors made in “good faith.” Upon deeper examination, however, Article 35 bis of the Law of 29 July 1881 diminishes the protection of this principle by providing that the “defendant’s bad faith shall be presumed.” Thus, as a practical matter the burden shifts to the publisher to show that an error was made in good faith.

In turn, French courts have held that good faith as a defense is satisfied by a showing of the indicia of journalistic caution, such as evidence of intellectual honesty, caution, objectivity, careful fact-checking, and skeptical analysis of sources and their motives prior to publishing. The following arguments have been rejected as evidence of good faith in France: 1) sincere belief in the truth of the imputation; 2) pleading pressure of deadlines; 3) a desire to inform the public; 4) the fact that an earlier publication of the same facts did not engender a lawsuit; and 5) use of cautionary language (such as the use of the word “allegedly”).

Limitations on Truth as a Defense in France

Truth is generally a complete defense in France, with some notable exceptions. French law conflates privacy claims into libel as an attack upon honor. Thus, in a case based upon publication of private facts, the truth of the fact is not the issue, but rather, liability will turn on those facts’ relationship to the public interest.

An important point for reporters and editors to keep in mind is France’s evidentiary limitation on the defense of truth: the sued-upon allegation must be shown as true at the time of publication, and journalists may not introduce documents gathered after publication to justify the allegation. Newsroom lawyers should encourage reporters to gather as many documents as possible to support a defamatory imputation prior to publishing.

Another limitation in France is the restriction on the ability to plead truth of facts more than ten years old.[21] French law essentially deems a person’s reputation to be rehabilitated after a certain amount of time. Thus defamatory characterizations based on acts ten or more years old may not be justifiable. In reporting on criminal offenses, the limitations are even more restrictive: proof of truth is inadmissible after 10 years from conviction of a felony, three years after delits (misdemeanors) and one year after contraventions (violations) unless an overriding public interest justifies publication of the prior convictions.

Limitations of Privileges in France

Aside from the “good faith” defense mentioned above, France recognizes a privilege for legislative speech and debate, and to any document ordered by the National Assembly to be published in the government’s Official Journal. However, the privilege does not extend to using private republications of such speeches as a source: reporters must consult the Journal itself for the privilege to apply.

Judicial proceedings and opinions are also privileged, including statements and documents actually filed with the court. However, the privilege is narrowly drawn, and statements made by litigants or counsel outside of the courtroom -- such as press conferences -- are not privileged, even if they directly relate to the proceeding. The judicial privilege only attaches to contemporaneous reports, and the limits to the truth defense, noted above, apply to judicial documents.

It should be noted that French courts have the authority to order that proceedings be closed to the press and public, and in that event, no privilege attaches to documents or statements arising from a closed proceeding.

England

Fault Standard: Absent Privileges, Strict Liability Applies

In cases where no justification or privilege is found for the statement in question, the statement’s defamatory nature, its publication to a third person, and the statement’s falsity are sufficient for liability to attach.[22]

Truth is an absolute defense in England, however, raising this defense is subject to procedural quirks such as evidentiary limitations and increased legal fees and damages.

Public Interest Defense and “Responsible Journalism”

As noted above, a new Public Interest defense will soon come into force, replacing but still drawing on the common law qualified privilege of “responsible journalism.” At best, courts to date applied  qualified privilege as  a high negligence standard,  that asks reporters do everything possible to avoid an error. In essence,  qualified privilege (often called the Reynolds defense) requires showing that the story is in the public interest, and that the falsity was unavoidable despite every effort to publish an accurate story. Qualified privilege requires a multi-part analysis that examines:

  • The seriousness of the allegation;
  • The extent to which the story is a matter of public concern;
  • The credibility of the sources;
  • The steps taken by the reporter to verify the information;
  • The urgency of the matter;
  • Whether comment was sought by the claimant and fairly included in the article;
  • The tone of the article; and
  • The timing of the article’s publication and other extenuating circumstances.[23]

In early cases courts in the UK were  particularly stingy in applying the defense. The privilege was  denied when reporters failed to be skeptical of their sources’ credibility or motives, failed to provide a fair opportunity to comment,[24] or when the behavior of the reporters was overly aggressive and the newspaper used a sensational tone in the story.[25]

In 2006, the Law Lords strengthened the privilege and the protection for investigative reporting in Jameel v. Wall Street Journal Europe,[26] where they unanimously overturned libel judgments in favor of Mohammed Jameel, a Saudi billionaire businessman over an article that said the Saudi Arabian authorities were monitoring the bank accounts of prominent Saudis for evidence of supporting terrorism.

Noting that the qualified privilege  had been too restrictively applied, they  established for the first time the defense of “responsible journalism,” holding that where the topic of a media investigation was of public importance, relevant allegations that could not subsequently be proved true should not attract libel damages if they had been published responsibly. In deciding whether the publication was handled responsibly, judges with “leisure and hindsight” should not second-guess editorial decisions made in busy newsrooms.

Going forward, the forthcoming statutory Public Interest defense may increase the protection for publishers, but lawyers conducting prepublication review will still have to closely, and perhaps cautiously, vet articles to take advantage of the defense.

Other Limitations in England: Contempt of Court

England also presents restrictions on reporting from courts through its Contempt of Court Act, which criminalizes in strict liability the publication of news in a manner that jeopardizes the defendant’s right to a fair trial.[27] These restrictions begin when the case “becomes active”: in criminal cases, when a prosecution is formally initiated or an arrest or surrender has occurred, and in civil cases, when the defendant has been served with a complaint and the case is Aset down for trial. As a practical matter, Contempt of Court is rarely an issue in covering civil litigation, unless it is to be tried by a jury, such as fraud or libel.

Although England’s Contempt of Court Act is a subject matter that in itself deserves lengthy treatment, the core issues to be considered are whether:

  • The news report introduces extraneous evidence that has not been introduced in court;
  • The news report does not respect the possible innocence of the defendant;
  • The news report focuses on prejudicial aspects of the defendant’s bad character;
  • The reporter interferes with (including interviews) the ability of a witness to function in an objective manner; or
  • The news report reveals a payment into court in civil litigation.[28]

Although England protects speech made in legislative chambers, the privilege is absolute only to the speaker in the legislative body. Journalists repeating defamatory statements made in Parliament enjoy only a qualified privilege in this context.

Germany

Fault Standard: Due Journalistic Caution

Although Article 5 of the German Constitution extends protection to the right of free speech, this protection is predicated upon a threshold finding that: 1) the public interest is served by the publication; and 2) “that the journalist has exercised diligence in his duty to search for the truth.” In turn, courts examine the following in making the diligence determination:

  • Evidence of “meticulous research”;
  • Completeness of the report;
  • Timeliness of the information;
  • Faithful representation of quotes; and
  • Opportunity for subject to comment.

It bears mentioning that while there is no separate wire service defense in Germany, reporters may fulfill the “research” prong of the test above by obtaining material from reliable wire services.[29]

Limitations on Truth as a Defense in Germany

If a publication is defamatory, truth is an absolute defense only in cases where the reporter sought to safeguard legitimate interests. If the language of the publication constitutes an insult (which can be either factually based, or an implication based on opinion), absent public interest, the truth of the statement is not a mitigating or justifying factor, and thus strict liability will attach. Anonymous sources may not be used to prove the truth of a statement.[30]

Relying on Judicial Documents in Germany

There is no absolute privilege for reporting from judicial documents or reports in Germany. However, given the obvious public interest in legal proceedings, such reports will almost always qualify for protection under Article 5 of the Constitution, provided that the reporter has met the generally applicable principles of “journalistic caution.” Reliance upon documents provided by public authorities, including courts, may satisfy a reporter’s due diligence requirements. Even in this context, reporters are not relieved of the responsibility to provide subjects an opportunity to respond.

Spain

Fault Standard: Appropriate Care to Investigate

Article 20 of the Spanish Constitution protects the “freedom of thought and opinion which includes the public’s right to receive newsworthy information.” However, in order to invoke Constitutional protection, the following conditions are considered:[31]

  • Social relevance of the story;
  • Appropriate care to investigate, including diligent search for information, reliance on credible and identified sources, truthfulness of the information; and
  • Moderation of tone of the article.

In addition, when the defamatory statement alleges or imputes criminal acts to the subject, a criminal prosecution requires that the statement have been published with knowledge of falsehood or reckless disregard for the truth. Although this sounds encouragingly like the American “actual malice” standard, “recklessness” has been understood in this context to simply mean a high degree of negligence, where the author “has not taken appropriate care to investigate the objective truth of the allegation.”[32]

Limitations on Truth as a Defense in Spain

Spain has some of the most confusing limitations on truth in all of Europe. In the case of a slander (any statement that injures the character or reputation of the person defamed), truth is not an absolute defense unless the defamatory statement is directed at a public official. Truth is a defense to calumny, the form of aggravated slander that imputes to the subject the commission of a criminal offense.

Few Privileges under Spanish Law

Like Italy, Spanish law does not recognize privileges, but instead treats certain types of documents and contexts of speech as indicative of “due journalistic care.” Therefore, reliance upon these sources may satisfy the diligence expected of reporters. Spanish law recognizes a right of access to hearings and documents filed in criminal and civil litigation. Despite this seeming openness, Spanish courts follow a sub judice rule, wherein parties to a litigation may not distribute documents or comment to the press about an ongoing litigation. Judges may also order the sealing of courtrooms from the press and public. Nonetheless, reporters are free to report on ongoing criminal investigations (which are carried out by a judge in the inquisitional system) or prosecutions (once the investigating judge has recommended that charges be brought), with the caveat that any reportage must “respect the principle of assumption of innocence.”[33]

Because Spanish law conflates privacy and libel claims as Aattacks upon honor, the traditional defenses to privacy claims apply in the case of the unauthorized use of an image, namely, consent, newsworthiness, and incidental appearance in public at an event of public significance.

It should also be noted that reporters breaching the confidentiality of a source might be liable to criminal punishment of up to four years imprisonment.[34]

VI.       Issue Spotting: The High Standard of Care Required in European Media Law

Thoughtful pre-publication review requires editors (and newsroom attorneys) to be able to meet the standards by which publications will be judged. By this point, American lawyers should not be shocked to learn that there is no high hurdle of “actual malice” for plaintiffs to overcome, and at best, the various “due care” or “good faith” standards discussed below sound in negligence, and in other cases, may even be a matter of strict liability.

With the exception of France and England, the high standard of care is also emphasized by a dearth of privileges. It must be remembered that the purpose of a privilege is to allow leeway for error. In other words, driven by the philosophical preference of “more speech is better,” privileges are a mechanism by which the value of certain topics outweighs the social costs of inevitable errors in such reporting. In the United States for example, if the press risked negligence liability for reporting on public matters, the chilling effect would deprive the public of news important to democratic function. Thus, in the United States, the fault standard is usually raised from negligence to actual malice. This contrasts with Europe, which generally provides that once the public interest is served, the standard of care merely moves from strict liability to what Americans would characterize, at best, as a negligence standard.

As a practical matter, this requires that reporters and editors be particularly diligent in fact-checking. Generally, lawyers reviewing stories published in Europe should be prepared to demand positive answers relating to the following questions from editors:

Is the subject a matter of current affair?

“Where are they now?” stories are given little deference, particularly if a court believes that the defamatory statement is brought up as mere gossip and does not move the news story forward. Even if a statement is true, without a reason for timely publication, courts will see the defamatory background fact as a gratuitous attack. (See particularly, French restrictions on reporting past convictions, discussed above).

Is the subject in the public interest?

As discussed above, this carries considerable weight in European courts. Failing to convince a court of the public interest in a story relegates the story to mere gossip, a class of speech which will be judged by a strict liability standard. The best way to defend this claim is by preempting it. Do not scramble after a court action has been initiated to show how the public interest is served, but instead encourage reporters and editors to include the public impact in the story itself.

Does the story have a tone of clarity and fairness?

Unlike American law in which hyperbole and heated rhetoric are the indicia of constitutionally-protected opinion, harsh language and expressions of a writer’s outrage are considered Aabuse and may engender libel claims.[35]

Does the story reflect objectivity and transparency?

Reporters must be able to answer questions about their sources’ credibility and plausibility. Because the objective mental state of a reporter (“I thought it was correct”) is not a complete defense, reporters cannot rely upon an erroneous, but plausible, source. Similarly, in most of Europe there is no analog to the American “wire service” defense, and republishing a defamatory statement, even if culled from an ordinarily reliable publication, will subject publishers to liability.

Is there clear evidence of diligent fact-checking?

No single objective analysis is as highly emphasized as the due care that a journalist is expected to practice to ensure that his or her information is correct. Reporters must be able to show the various steps they have taken to verify information, including faxes, phone calls, and whether the plaintiff was given an opportunity to explain or answer the allegations. First-hand examination of relevant documents is critical: it is not enough to say that a reporter was told, for example, that a company’s financial statement said something; the reporter must be able to aver that she or he actually read the report.

Conclusion

These laws may lead to the pessimistic view that Europeans are simply content to live with a less free and robust press. I would submit optimistically that instead, the restrictions present a challenge to live by the trite but true saying that “good journalism is the best legal defense.”

Reporters and editors should be encouraged to practice defensive journalism, whereby the public interest in a story is clear and palpable, the subject of the story is given a clear and honest opportunity to respond, the sources for a story are scrutinized by the reporter for motive and plausibility prior to being relied upon as a foundation of defamatory allegations, and the tone of the story is moderated and fair. These are the tenets of good journalism, no matter from where the dateline is posted.

To return to one example from the introduction, the defensive approach would counsel that a news article discussing an intimate fact about German Chancellor Schroeder (e.g., his hair coloring or alleged extramarital affairs) clearly set out a public interest (e.g., the relationship to his style, method or attention to governance) and be written in a fair, rather than mocking, tone.

To be sure, even responsible news reports will bring claims, just as they do here. But there is a secondary advantage to the defensive approach. Responsible news reports present courts with the most compelling case to reform or abandon restrictive libel laws. Such reports demonstrate most clearly to judges that what is ultimately at stake is not the fate of a single press defendant or the reputation of a single individual but the public’s interest in obtaining the necessary information to guide their lives in a democratic society.


*Charles Glasser served as Bloomberg News’ Global Media Counsel for more than 12 years, and is the author of the “International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters, and Lawyers,” 3rd Ed., John Wiley & Sons (2013), upon which much of this paper is based.

^The International Libel & Privacy Handbook covers the media law of more than 30 different nations. The book and this paper, including an earlier version published by MLRC, were prepared with material provided by a number of European attorneys whom I would like to acknowledge, including Mark Stephens of HowardKennedyFSI LLP (UK); Dominique Mondoloni of Willkie Farr & Gallagher (France); Almudena Arpon DeMendivil of Gomez-Acebo & Pombo (Spain); and Jan Hegemann of Raue (Germany).

[1] See. e.g., “Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act,” Public Law 111-223 (2010); “Libel Terrorism Protection Act,” N.Y. CPLR. 302(d), N.Y. CPLR. § 5304 (b)(8).

[2] Matusevich v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995).

[3] Unlike the United States, most Western European publishers operate under one or more licensing schemes, and the profession of journalism is often regulated by statute. See, e.g., Law of 29 July 1881, (France); Law No. 69 of 1963, (Italy); Art.5, letter I, Law 2/1974 (Spain). Each of Germany's eleven states has a Press Law (Pressegessetze) with varying degrees of regulation. All of these laws require registration of journalists with government authorities, and/or registration of a resident agent authorized to accept service of papers or answer formal inquiries.

[4] See, e.g., Article 65 of the Press and Printing Act, 18-3-1966, (Spain) envisioning responsibility en cascade whereby reporter, editors, managers, and publishers are each targeted in joint and several liability in libel cases. Criminal sentencing in Europe ranges from 2 years (Spain), 1 year (France), 5 years (Germany) and may include seizure of offices and publications (Italy). See, e.g., “Google Video trial to continue to Italian supreme court,” PCWorld, April 17, 2013 ("Google’s Senior Vice President David Drummond, Chief Legal Officer Peter Fleischer and Chief Privacy Counsel George Reyes were initially handed six-month suspended prison sentences by a Milan court in 2010 for allowing the video showing the bullying of a handicapped student to be posted to Google Video.")

[5] John Stuart Mill, On Liberty 1859, Ch.2. Ed. Davidson, Inc., 1947. (“We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.”)

[6] Abrams v. United States, 250 U.S. 616, 624 (1919) (dissent).

[7] See, e.g., Von Hannover v. Germany (no. 2) (Applications nos. 40660/08 and 60641/08), ECHR Feb. 7, 2012, referencing Germany's Basic Law Article 1 § 1 that “The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.” Compare, Paul v. Davis, 424 U.S. 693 (1976) (rejecting constitutional right to reputation).

[8] Spain is a notable exception, the Constitutional Court of which has stated in dicta that Article 20,4 of the Spanish Constitution, which protects free expression, has been granted a “preferable position” against dignitary rights.

[9] Compare and contrast, Huggins v. Moore, 704 N.Y.S.2d 657 (1999) (granting editors almost unfettered discretion as to meaning of newsworthiness) with Mosley v News Group Newspapers [2008] EWHC 1777 (QB) (holding that in privacy action, there was no public interest in publishing photographs of famous claimant dressed as a prisoner while being whipped by prostitutes dressed as German prison guards.)

[10] Cassation, Civil Sec. I, October 18, 1984, No. 5259.

[11]  See, e.g., Jameel v. Wall Street Journal Europe, [2006] UKHL 44, para. 49 (“As has often been said, the public tends to be interested in many things which are not of the slightest public interest and the newspapers are not often the best judges of where the line should be drawn. It is for the judge to apply the test of public interest. But this publication easily passes that test.”) For more information on the new law see The New Defamation Act 2013: What Difference Will It Really Make? in this issue of the MLRC Bulletin.

[12]  Federal Supreme Court NJW 1996, 1131, 1133

[13] See, e.g., Sim v. Stretch (1936) 52 T.L.R. 669 at 671 (“Would the statement lower the plaintiff in the estimation of right-thinking members of society?).

[14] Cassation, Section V, October 15, 1987, in Cassation pen., 1989, p. 989.

[15] Cassation, Section V, November 24, 1993, in Giust. Pen., 1994, II, p. 495

[16] Cassation, Criminal Section, June 30, 1984, cit.

[17] Cassation, October 18, 1984, No. 5259, cit.

[18] Cassation, Criminal Section, United Sections, June 30, 1984, in Foro it., 1984, II, p. 531

[19] Cassation, Section V, February 13, 1992, in Cassation pen., 1993, p. 2266

[20] Guaranty Authority for the Treatment of Personal Data, published in the Official Gazette of the Republic of Italy on August 3, 1998, No. 179.

[21] Paris, 16 January 1986, GP 86.2.701.

[22] See, e.g., Cook v. Ward (1830) 6 Bing 409 (holding that the defendant's innocent motives are not germane to issue of liability).

[23]        Reynolds v. Times Newspapers Ltd, [2001] 2 A.C. 127).

[24]  See, e.g., Loutchansky v. Times Newspapers, April 27, 2001 (Gray J.).

[25]  Grobbelaar v. News Group [2001] 2 All E.R. 437.

[26]  2006 UKHL 44, 2007 AC 1 359 [2006]

[27]  See, e.g., R. v. Bolam, ex p. Haigh [1949] 93 S.J. 220. (Daily Mail editor sentenced to 3 months in jail for suggesting that murder suspect was guilty of other murders as well).

[28]  It should be noted that English courts may issue gag orders sua sponte or at the behest of parties to prevent the press from reporting on allegations and evidence made in open court.

[29] District Court, Hamburg, AfP 1990, 332.

[30] Federal Supreme Court NJW 1997, 1299.

[31] SCC 21/200; SCC 154/1999.

[32]  S. Gomez, Derecho penal, parte especial, Dykinson, Madrid 2001, p.284.

[33] Art. 141 of Law 1/2000.

[34] Art. 199 Sp. Cr. C.

[35] Compare, Greenbelt Cooperative Publ'g v. Bresler, 398 U.S. 6 (1970) with German law, which holds that publications devolve into slander when “disparaging remarks focus on the defamation of an individual rather than on an analysis of an issue.” (Fed. Sup. Ct., AfP 2000, 167).

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