How to avoid defamatory imagery and cutlines

By Tyler Schank

By definition, defamation is the act of damaging someone’s reputation. The first thing that pops into your head when you hear defamation is probably not a puny cutline, a photograph or a 40-character headline. But, it should be.

To prove defamation, the plaintiff must prove four elements:

  1. The defamatory statement was false.
  2. The statement was published.
  3. The publisher acted negligently.
  4. In some cases, special damages must be proven. (FineLaw)

The New York Post found itself in hot water in 2013. The New York Post published a cover featuring a photo with two men with backpacks at the Boston Marathon with the text “Bag Men” over it. The cover implied the men were guilty of organizing the Boston Marathon bombings. The men sued for defamation because they had nothing to do with it. (The Washington Post)

An image, cutline or headline can be defamatory if it creates a false impression of someone. All three elements must work together to create an accurate piece. A cutline may be damaging if certain facts are emphasized and others are omitted, thereby changing the meaning. A photo may be damaging if during the editing process its actual meaning is manipulated by cropping or by alternative editing techniques.

University of Nebraska-Lincoln professor and photojournalist Bruce Thorson requires students to write five-sentence cutlines for every photo turned in for a grade. The first sentence is literal: who, what, where, when. The second sentence is a relevant quote from a person in the image or a person involved in the event. The last sentences provide context for the photo.

“I teach where the cutline has to be accurate and truthful,” Thorson said. “I think in that way that will combat any defamatory issues that might arise.”

If a statement or image is defamatory but true then it is not actionable. Truth is the best defense in life but especially in journalism.

Today, people want their news and they want it now. Journalists need to remember that people aren’t always reading the whole story. Some will look at the image, the cutline, the headline and call it a day. Readers walk away thinking they know the big scoop when they’ve barely skimmed the surface.

Editors must make sure people who skim the surface are getting the right information and not the wrong impression. It’s all about decision-making and communication on the editing side of the newsroom.

“You need to make sure you’re getting all of the context,” mass media law professor John Bender said.

While gathering information, gather as much as possible. Bender, who teaches at the University of Nebraska-Lincoln, said journalists should always gather more than they need. Then later, during the decision-making process of what to publish, editors can omit facts that aren’t pertinent to the story.

“But if you don’t have all that context, you’re going to be making those decisions in the dark,” Bender said. “…you’re less likely to make silly mistakes.”

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