Still, videographers are often left wondering whether they got it “right” and what, if anything, could happen if a factual error were made and portrayed in their work. Luckily, the law of libel and some important U.S. Supreme Court decisions provide a framework for analyzing content inaccuracies and understanding how it affects you.
The Legal Landscape
Libel is defined by Cornell’s Legal Information Institute as “a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.” Slander, on the other hand, is limited to false oral statements. Note that the focus of libel is not on the truth of the information asserted but instead on its effect on the subject. When published information is not just injurious but also false, guilt or innocence on the part of the publisher and any potential damages often hinge on the publisher’s regard or disregard for the truth of the content.
In a 1964 case known as New York Times Co. v. Sullivan, Montgomery, Alabama police commissioner L. B. Sullivan sued the New York Times for publishing a full-page advertisement describing the oppressive conditions in the city, particularly by the police force. While Commissioner Sullivan was not personally named in the advertisement, he considered the act of defamation directed at him and his reputation. In fact, the advertisement not only painted Montgomery in a bad light, it actually contained factual errors and false statements to boot.
You can be wrong about something and still publish it without fear of retaliation as long as you did your due diligence when conducting the background research and did not knowingly or irresponsibly publish false information.
In this landmark decision, the United States Supreme Court concluded that the First Amendment, which protects the right to free speech, protects all statements, even false ones, about public officials except when the statements are made with “actual malice,” or the knowledge that they are false, or in reckless disregard of their truth or falsity. While this decision only focused on speech regarding public figures such as politicians, entertainers, etc., later cases touched upon speech about private individuals as well. In 1974, Gertz v. Robert Welch, Inc. concluded that the First Amendment also protects private individuals against libelous statements, granting them even greater protection, through a lower burden of proof, than public individuals protected by Sullivan. These and other similar cases, therefore protect content publishers by requiring that the information they publish, whether true or false, not harm the subject and not be published in bad faith.
The Effect on Online Video Uploading
Online video-uploading services, such as YouTube and Vimeo, address the issue of misinformation. YouTube’s Terms of Service, for example, do not require accuracy in uploaded content, though the site does refer to potentially problematic content in several places. First, YouTube clearly states that users who upload content retain all ownership of their content and agree to generate content based on the company’s “community guidelines.” These guidelines, while warning against posting inflammatory, hateful or otherwise dangerous content, do not require uploaded content be correct. Therefore, YouTube implicitly acknowledges that incorrect content may be uploaded and exposed to the millions of daily YouTube visitors. Second, under the Limitation of Liability section, YouTube states that it will not be held liable for any damages resulting from, among other things, errors, mistakes or inaccuracies of content. This disclaimer implicitly acknowledges that errors, mistakes or inaccuracies create some exposure to legal liability, and places any such legal liability on the user.
Vimeo, on the other hand, is a bit more restrictive regarding its content. On its Terms of Service page, the site states that users “may not upload, post, or transmit…any video, image, text, audio recording, or other work… that… [c]ontains hateful, defamatory, or discriminatory content or incites hatred against any individual or group.” Vimeo’s FAQ on Reporting Abuse and Violations clarify that moderators will generally remove videos that “make derogatory or inflammatory statements about individuals or groups of people, are intended to harm someone’s reputation, [or] have an overall mean-spirited vibe.” Thus, Vimeo’s policies create a first line of defense in their content moderators, giving them the power to take down content that may lead to an action in libel due to inaccuracies and any harm that might come with it.
What Does This All Mean?
The biggest takeaway from the legal framework surrounding inaccuracy in speech is that, well, it’s allowed. You can be wrong about something and still publish it without fear of retaliation as long as you did your due diligence when conducting the background research and did not knowingly or irresponsibly publish false information. Sure, out of professional courtesy or other non-legal concerns, you may remove your video if it has inaccuracies or otherwise provide an explanation for the error, perhaps in another video. But in the eyes of the law, as long as you did not create incorrect content purposefully or without doing a reasonable amount of research, you should be in the clear.
There is a second line of defense: namely, professional liability insurance, or errors and omissions insurance, which protects professional services against negligence claims. In the case of video inaccuracies, professional liability insurance offers a safety net in the event someone claims your video content has hurt them in some way.
Of course, if you find yourself in a situation where someone is attempting to take legal action against you because of the content of your video, contact your friendly lawyer to get tailored legal advice specific to your case.
Roman Zelichenko is a graduate of Brooklyn Law School and currently works as a consultant in the financial sector.
Mark Levy is an intellectual property attorney based in upstate New York.