By Kris Cundiff 

In recent years, my colleagues and I at the Reporters Committee for Freedom of the Press have noticed journalists are increasingly eager to have their stories vetted before publishing. Here in Indiana, I regularly provide free legal vetting, or pre-publication review, to help journalists get important stories out to their communities.

Ideally, every journalist would have access to an attorney to do this kind of work. Unfortunately, that isn’t the case. Due to limited resources, Reporters Committee attorneys can’t accept every client, and it can be hard to find media attorneys willing to provide these services for free. So a few years ago, my colleague Paul McAdoo, our Tennessee-based attorney, put together a handy list of tips for journalists who want to vet their own stories to reduce legal risk.

In this column, I wanted to pass along Paul’s tips. They’re a great guide to ensure your reporting is more likely to survive a lawsuit — and help you rest easier at night. As you’ll see, the pre-publication review process goes beyond your traditional editing and fact-checking routine. Some of these tips are good to keep in mind in your early stages of newsgathering, long before you sit down to type your first draft.

Be careful with confidential sources.

As any editor will tell you, named, on-the-record sources are almost always better than confidential sources. While confidential sources are sometimes crucial to telling a particular story, it’s best to use them with caution, especially when the subject of your reporting has the potential to file a libel lawsuit. Not only do confidential sources breed mistrust among some members of the public, but they can also put you in tricky legal situations.

For one thing, there are certain circumstances in which you could be forced to reveal the identity of a confidential source in court, a scenario every journalist wants to avoid. But successfully protecting your confidential source’s identity could end up complicating your ability to defend yourself against a libel suit, in part because you might not be able to call that person to testify on your behalf.

Seek requests for comment.

Contacting the subjects of your reporting for comment before publication might sound like a no-brainer, but journalists sometimes cut corners here. Legally speaking, it’s critical that you give the people you are writing about the chance to tell their side of the story, especially if the story accuses them of wrongdoing. This step helps demonstrate that your reporting is unbiased and could serve as an important defense in a libel lawsuit.

But the lengths to which you go to reach out for comment matters, too. If you’ve spent months reporting an investigative series about a local politician, it’s not enough to call the person an hour before publication for comment. In a situation like that, you should make multiple calls and send multiple emails that clearly explain what your story is about and why you would like the person to comment. And you should give them sufficient time to respond.

Whatever the response — even if it’s just a “no comment” or that they didn’t respond to requests for comment — be sure to include that in your story.

Consider whether the subjects of your story are public officials/figures or private figures.

Public officials (governors, mayors) and public figures (corporate leaders, celebrities) must prove what’s known as “actual malice” to prevail in a libel suit. In other words, they must establish that you knew or strongly suspected that a statement you published was false when you made it.

That’s a much higher legal bar than the one that applies to private figures, who can succeed in a libel lawsuit merely by showing that a false statement that injured their reputation was made with negligence. Because actual malice is widely misunderstood, my colleagues at the Reporters Committee have published a helpful explainer.

Rely on official documents and proceedings as much as possible.

Under what’s known as the “fair report privilege,” you are protected from liability if you fairly and accurately report on government records, official proceedings, court documents, and official statements made by public officials. Be sure to state in your story when information you are relying on is attributable to official documents or actions so that it’s clear that the fair report privilege applies.

As always, if you have legal questions, reach out to me at kcundiff@rcfp.org. For more information, check out the Reporter’s Committee’s Guide to Pre-Publication Review.

Kris Cundiff is the Indiana Local Legal Initiative attorney at the Reporters Committee for Freedom of the Press. He lives just outside of Indianapolis