BROOKE GLADSTONE: Time was if you were doing your job as a journalist and, as the saying goes, afflicting the comfortable, then the comfortable would push back and sue you for libel. True, media outlets also simply made mistakes or printed false claims, but dealing with the legal hassle of libel suits was seen as an inevitable part of journalism. So imagine New York Observer reporter John Koblin’s surprise when he followed a lead recently and found that in the last few years, libel suits have all but disappeared against the media. Koblin called Time, Inc. to ask how many libel suits it currently had. He reached Robin Bierstedt, 27-year veteran of Time, Inc.’s legal team, who'd fought back against libel suits by groups like the Church of Scientology. He reached her just in time. She was retiring later that week, and the reason, she explained, was simple.
JOHN KOBLIN: No more lawsuits. They have not had a pending libel suit over the course of the last year. I then called up The New York Times Company, and The New York Times Company said they have not had an active domestic libel suit on their hands for a year -
BROOKE GLADSTONE: Hmm!
JOHN KOBLIN: - since last July. And that includes The New York Times, The Boston Globe and lots of regional newspapers.
BROOKE GLADSTONE: Now, is it possible that these kinds of suits may have migrated to small local papers where the impact of a defamatory article might be greater?
JOHN KOBLIN: It’s very possible. I mean, one of the theories that media lawyers have right now, if they're not happening to the big media companies, it could be your smaller newspapers. But there is no concrete evidence on this. Most of the lawyers who I spoke to have represented large media companies, and the thing that they said, it might be happening down there, but we don't know, but we know we're not seeing it up here.
BROOKE GLADSTONE: So let's talk about some of their favorite theories. After years of suing companies like Time, Inc. and The New York Times, plaintiffs have realized that these cases are losers?
JOHN KOBLIN: That is a popular theory, the fact that in the U.S., if you sue, it’s a libel claim, generally it’s going to go in favor of the media company. And these are very long and onerous lawsuits. It’s expensive. It doesn't work.
BROOKE GLADSTONE: Theory number two is just the ubiquity of the Web, which seems to balance out the power of any single media company. For instance, when the musician M.I.A. contested a recent profile of her in The New York Times Magazine, she didn't sue. She tweeted her objection, she posted raw audio -- JOHN KOBLIN: Mm-hmm. BROOKE GLADSTONE: -- from the interview, along with the reporter’s cellphone number.
JOHN KOBLIN: [LAUGHS]
BROOKE GLADSTONE: The Internet seems to allow potential plaintiffs to fight it out instead in the court of public opinion?
JOHN KOBLIN: This is the theory that I buy the most. The fact that there is so much out there on the Web, the impact of a Times story isn't the way that it was even 10 years ago. And I think potential plaintiffs who would want to sue have to say, this isn't going to harm me in the way that it might have a few years ago. And the point that you brought up, they can put their own responses up. They could go to The Huffington Post and write a blog post. They could post something to their own blog. And if you’re upset and you call up that company, there’s a good chance that if you’re going to get a correction, instead of it sitting in the magazine a week later or two weeks later, or the newspaper a few days later, you can get it up on the Web immediately. So when people google your name and look at that story later on, they won't see that incriminating fact that you were so upset about.
BROOKE GLADSTONE: And newspapers and magazines seem more responsive. Because they have this mechanism, they do it faster. They don't fight the corrections perhaps as hard?
JOHN KOBLIN: If you have somebody who’s angry and is putting their own response out there and putting their own spin on the story, there is no stonewalling anymore because they are going to have their voice heard. And suddenly the focus of a story is not your story anymore, it’s their response. George Freeman, who’s the counsel at The New York Times Company said, if somebody’s upset and we were wrong, we'll put up the correction immediately.
BROOKE GLADSTONE: I think the scariest theory is the one that involves the suggestion that financially strapped news organizations - first of all, they're putting less money into the kind of investigative reporting that might -
JOHN KOBLIN: Mm-hmm.
BROOKE GLADSTONE: - engender these kinds of suits and, second, they've become so legally risk-averse that they avoid investigating the most litigious organizations like, say, the Church of Scientology or, or Disney.
JOHN KOBLIN: Every media lawyer is a little squeamish to talk about this theory because they still represent big companies and they don't want to admit that they don't perform the type of journalism that would have produced libel suits in the past. But nevertheless, we have to consider this. Fifteen years ago, when media companies were doing very, very, very well, you get an angry phone call, you’re happy to pursue that lawsuit – it doesn't matter, we’ve got money. But now in a time where everybody is strapped for cash, all of a sudden if they make that angry phone call, pre-publication, you start to seriously consider editing some stuff out because who wants to go down that road. Floyd Abrams made a point of this in the interview that I had with him; the very famous First Amendment lawyer said this is something that media companies carefully consider now, much more so now than ever before.
BROOKE GLADSTONE: Now, you've noted that there are fewer libel cases in the U.S., but even more libel cases in Europe, especially in places like the U.K., where the libel laws favor the plaintiffs -
JOHN KOBLIN: Mm-hmm.
BROOKE GLADSTONE: - far more than they do here. Have libel suits, do you think, just migrated to places where they're easier to win?
JOHN KOBLIN: It is the one loophole. But every media lawyer I spoke to, none of them had a sense that this is a loophole that is exercised much.
BROOKE GLADSTONE: When you step back from this trend, are you left with just another sad story of the slow demise of major news organizations? I mean, Time may not be getting sued anymore, but are people there lamenting that maybe in large part it’s because Time has lost its mojo?
JOHN KOBLIN: The media’s influence is now not just held by a few big newspapers or magazines, and it’s certainly an example of that diminishment of power. Whether or not it represents our slow demise of the media overall, I don't think this story at all suggests that.
BROOKE GLADSTONE: John, thank you so much.
JOHN KOBLIN: Thank you.
BROOKE GLADSTONE: John Koblin writes about print media for The New York Observer. His piece, The End of Libel, ran at the beginning of June.
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by by Tinariwen