I have a coffee cup at home that came from the L.A. Daily News with a phrase below the logo that states, 'We draw the line between fact and opinion.' While drinking from that cup doesn't always provide the elixir of perspective, it has come to mean that 'opinion' follows competent fact investigation, not the other way around.
The Internet is considered by many to be the stepchild of mainstream media. But, in a decision from New York in December, Internet reporting clearly showed the mainstream media that there's no monopoly on good investigation and reporting.
The Narco News Bulletin is a Web site dedicated to exposing drug trafficking in the Americas. Por Esto! is a Mexican newspaper that publishes articles about the drug trade. The Narco News posted a series of news stories that Por Esto! had run beginning in 1997. In the stories, a director and majority owner of the National Bank of Mexico ('Banamex') was labeled a drug trafficker based upon pictures taken of cocaine shipments at his property, along with certain eyewitness accounts. The reporters also made similar claims in personal appearances on the radio in New York in 2000.
Needless to say, Banamex cried libel, slander, and character defamation. And, after Banamex lost its defamation claims in the Mexican courts, it took its case to New York.
From an Internet law perspective, questions about the propriety of Banamex's filing a second suit in New York were legion: Is it proper? What about issues of double jeopardy? If you could sue a Web site in Mexico, how can you also be allowed to sue in New York? Do all Web sites now face potential lawsuits in their host country, and in the States? How could the New York court obtain jurisdiction over foreign nationals? And so on. Indeed, Wired magazine [www.wired.com] discussed many of these issues in in May, June and July of last year.
So, how did it turn out? Although the court did not reach all of the issues, in December it dismissed the suit against one of the reporters. The court decided that, as a Mexican citizen, he simply did not have sufficient contacts with New York to justify personal jurisdiction. However, Narco News and its publisher were sufficiently connected with New York for jurisdictional purposes because they maintained a post office box in New York and had the Web site hosted by a New York firm. 'On balance,' the court concluded, 'plaintiff has alleged sufficient facts, which if proven true, would support a finding of jurisdiction against the ... [Narco defendants].' The opinion in the case of Banco National de Mexico, S.A. v. Mario Renato Menendez Rodriguez, Al Giordano and The Narco News Bulletin is available from the Electronic Frontier Foundation's Web site. EFF intervened as amicus curiae in the case.
With respect to the defamation claims, Judge Paula J. Omansky stepped out of her judicial robe long enough to declare outright what many writers have believed for some time: 'The Internet is similar to a television and radio broadcast in the sense that the electronic missive is able to reach a large and diverse audience almost instantaneously. However, the character of a particular Web site depends on the format and program design. A careful review of . . . submissions on Narco News's Web site indicates that the Narco defendants' format is similar to a regularly published public news magazine or a newspaper except for the fact that the periodical is published 'on line' or electronically, instead of being printed on paper. The fact that the Narco News Web site can accept readers' comments, or letters to the editor, via a separate e-mail address only strengthens the need for First Amendment protections of the medium. Since principles of defamation law may be applied to the Internet, this court determines that Narco News, its Web site, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper/magazine or journalist in defamation suits. Furthermore, the nature of the articles printed on the Web site and [the publisher's] statements at Columbia University constitute matters of public concern because the information disseminated relates to the drug trade and its affect on people living in this hemisphere.'
The court went on to conclude that the bank was not a public figure under the The New York Times v. Sullivan and Gertz v. Robert Welch, Inc. standards. But, since the allegedly defamatory statements were regarding matters of public concern, the bank had the burden of proving that the defendants acted with malice in making the statements.
According to the court, Banamex could not prove that Narco News acted in a 'grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.' Nor did the Banamex plead facts that the Narco defendants 'did not utilize those methods of verification which are reasonably calculated to produce accurate copy.' Or, that Narco News used sources which they 'knew or should have known were unreliable.' In fact, according to the court, Banamex failed to state 'any fact which, if proven true, would show that the Narco defendants were aware of circumstances which would have led them to question the veracity of the information.'
In other words, the bank was unable to prove that Narco News' investigation was biased or shoddy. Without that proof, the court dismissed the suit.
The lessons from the Narco News case are threefold: first, you can be sued where your site is hosted or you maintain a mailing address; second, journalists accused of defamation in the United States should be able to rely upon first amendment protections in print, broadcast or Internet media; and, third, to deflate claims of malice, a journalist is advised to conduct thorough fact investigation.
Competent fact investigation informs opinion and is a hallmark of good reporting. It separates truth from conjecture. Assertions made without investigation are the stuff of defamation. The lessons from Narco News extend beyond the reach of the Internet and should be required reading for anyone interested in the standards of good reporting.
The Narco News court found that the traditional standards applicable to libel and jurisdiction hold true in the cyberworld as in the real world. But, more importantly, the case provides a real world lesson in the differences between fact and opinion in the newsroom.