Q: I’ve recently been confronted with how terrible journalistic protocol is around telling the stories of rape and assault survivors. The nature of the crimes committed against them mean that they’re often uncorroborated or unwitnessed and the hostile environment of the internet means that victims who come forward at all are hounded. Is there a way for me to tell the stories of rape and assault survivors and still protect them? Can I out an abuser and an attacker without being sued for libel? How does the media stay ahead of a failing legal system in these cases?
A: As a general matter, any time there are serious allegations such as rape being reported, you should proceed thoughtfully, as it seems you are doing, and perhaps have an attorney perform a pre-publication review of any story to make sure that any statements in the story identifying an alleged rapist (either by name or by circumstances) are defendable should you and/or the publication in which the story appears find yourselves on the other end of a defamation lawsuit.
As explained below, there are various degrees of protection afforded to reporting on, e.g., court documents or other official records, as well as statements that simply report the truth, but you will want to be careful in how you report any such information so you can avail yourself of the laws’ full protections.
First, there are certain protections afforded to reporting on “official” documents and proceedings, such as court records and proceedings, that you will want to become familiar with.
Many states provide such protection, typically known as the “fair report privilege,” via statute or case law. In New York, the fair reporting privilege grants a complete immunity from defamation claims where the reporting as a “fair and true” report of court proceedings. “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.” N.Y. Civ. Rights Law § 74. To invoke this privilege, it is important to make clear that you are reporting from an official document (e.g., by frequently attributing the information to that source and using key words such as “alleged in the complaint” or “according to …”).
However, I understand many attacks are not reported, and therefore there may not be any official record from which to report allegations of rape. Obviously, you will want to proceed cautiously if this is the case, and make sure you are sourcing and verifying your information thoroughly. Unfortunately, we cannot provide any specific advice in exactly how to go about your reporting, but I would strongly urge you to work with legal counsel in reviewing any story reporting on an alleged rape.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.