A BIG DEAL IN THE OHIO SUPREME COURT

The Ohio Supreme Court is considering a libel case that is potentially, to quote former Joe Biden, a big f’ing deal. At least it will be if the court gets it wrong.

At issue is the question of what standard journalists should be held to when doing their job. And that has enormous consequences, for the public as well as the media.

The case is Aaron Anderson v. WBNS-TV and it involves a fairly common occurrence. Columbus, Ohio police responded to a crime scene. Some parents were at a waterpark watching their 8 year old daughter ride a hoverboard. Two men approached, put a gun to the child’s head and demanded the hover board. They then ran to a PT Cruiser and fled the scene.

The police looked at security footage, and pulled a still photo showing three individuals entering the park who they thought may have been involved in the crime. They released the photo to the local media, including WBNS, and asked the outlets to publish the photo in hopes it would help solve the crime.

WBNS broadcast the photo and referred to the subjects as “suspects.” On its website, it ran a story with the photo and a headline that read: “Robbers Put Gun to Child’s Head and Steal Hoverboard.” The lead sentence said: “Columbus Police are searching for two men who robbed a child at gunpoint in east Columbus.”

It turns out, the people in the picture were not involved. They alerted the Columbus police, who immediately alerted the media. WBNS removed the photo from its website, but left the text of the story, since the text was 100% accurate. The original story was on the WBNS website for a matter of hours.

Nonetheless, the three subjects filed a libel suit. The trial court granted WBNS summary judgment, finding that it did not act negligently in publishing the information. And that kind of makes sense. It hardly seems negligent to rely on information provided by cops about a crime. That’s their job after all. And a 30 year old Ohio Supreme Court case – Landsdowne v. Beacon Journal Publishing Co. – made it clear that a libel plaintiff has to establish by “clear and convincing evidence” that the publisher failed to act reasonably in attempting to discover the truth.” And that is basically the standard in 46 states, so Ohio is hardly an outlier.

But for some inexplicable reason, Ohio’s Tenth District Court of Appeals reversed the decision. With reasoning that is difficult to follow, the appellate court decided “a media outlet has a stronger duty to research the facts in such cases than it did when Lansdowne was decided. False stories on the internet do not simply disappear because the truth is later discovered.”

There are many problems with this decision, but let’s focus on two glaring issues. First, the fact that information is more available ought not result in a wholesale rules change. The issue is the degree to which the publisher acted responsibly or not. The fact that more people may have access to the published information doesn’t alter the duty of the publisher. Does the flip side apply? Cars are much safer than they used to be. So, should we allow drivers to be less safe?  Seems a little silly doesn’t it?

And speaking of silly, if the 10th District thinks the negligence standard is no longer appropriate, it would nice if they’d lay provide a new standard. What exactly is the “stronger duty”? I don’t know the answer generally, and I can’t think of what more WBNS should have done in this particular instance. The station had no names, no contact information and no way of getting the plaintiffs’ “side of the story.” But they were being told by police that the folks in the photo could be violent criminals. Do you hold the story until your reporters can engage in a futile effort to “research the facts”? Or do you run the story (as the police wanted you to) being careful to identify the photo subjects as “suspects” and nothing more. At the time of publication, that is what they were.

And the decision is not just a mess legally. As a matter of public policy, it is problematic. In this scenario, the publicity could have led to the apprehension of the criminals. The photo of the suspects served only to enhance that prospect. Indeed, it was likely the publicity that allowed the plaintiffs to clear their name as quickly as they did. This decision, if the Ohio Supreme Court allows it to stand, will discourage the media from cooperating with police in this situation.

Occasionally, judges are well advised to listen to common sense. The message here? If it ain’t broke, don’t fix it. Let’s hope the Ohio Supreme Court applies some common sense here.