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3 experts on the legality of BuzzFeed’s decision to publish an unverified document

Screenshot/Buzzfeed

BuzzFeed’s decision to publish an unverified intelligence report, filled with explosive and lewd allegations about President-elect Donald Trump, has triggered intense criticism from Trump and an ethics debate among journalists.

More importantly for BuzzFeed, it might invite a defamation suit.

The intelligence report includes claims that the Russian government possesses materials that could blackmail Trump, including financial information and video of him engaging in sexual acts. Trump and his team say there is no truth in that dossier. If that’s true, they could have a legal case against BuzzFeed. The news site, though, might have some legal ground to stand on in its decision to publish.

Experts say the strength of that defense depends on BuzzFeed’s sources.

Even if the contents of this dossier prove to be fabricated — and they could be — there is argument that BuzzFeed is covered by what’s called the “fair report privilege,” according to Jane Kirtley, a media law expert at the University of Minnesota.

The fair report privilege protects news organizations that accurately report allegations made in official documents or reports. It’s common law, not a constitutional privilege.

“The idea is that the public has a legitimate interest in knowing what the government, or credible organizations, are saying, even if it is ultimately found to be untrue,” Kirtley said.

That’s the same case BuzzFeed editor in chief Ben Smith made in a public memo to his staff: that the site was publishing the dossier, allowing Americans to “make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”

The president-elect said the post was outright fake news, called BuzzFeed a “failing pile of garbage,” and said he thinks BuzzFeed will “suffer the consequences” of its actions.

To be sure, Trump hasn’t clarified these “consequences,” and no one has taken legal action yet. But if such a suit were to come up (and it wouldn’t be the first time Trump has taken up a defamation case), there are certain privileges the press has when covering the government and public figures that could come into play here.

“People often confuse ethics with the law,” said Susan Seager, a First Amendment attorney who teaches media law at the University of Southern California. “Decisions made in newsrooms are based on both.”

What we know about this unverified document tells us a lot about BuzzFeed’s legal standing

This is what we know: The contents of the dossier have not been verified. BuzzFeed made that very clear in its report, and so did James Clapper, the director of national security. In a statement, Clapper said the intelligence community “has not made any judgment that the information in this document is reliable, and we did not rely upon it in any way for our conclusions."

BuzzFeed’s Smith also made clear that there is a reasonable cause for doubting the memo’s reports. (Neither Smith’s memo to staff nor the actual article explicitly said BuzzFeed doubted it, however.)

There are inconsistencies and mistakes in the memo — as BuzzFeed points out, writing that “it includes some clear errors.”

We also know that the intelligence dossier, prepared by someone alleging to be a former British intelligent agent, circulated the highest echelons of government so much so that American intelligence felt it necessary to brief both President Barack Obama and President-elect Trump. Clapper said the briefing was part of the intelligence community’s obligation to “ensure that policymakers are provided with the fullest possible picture of any matters that might affect national security."

All of this matters legally.

If BuzzFeed can prove this is the official document that the intelligence community was investigating and that made its way to a briefing with the president and the president-elect, and that BuzzFeed fairly reported on it (said it was unverified and has errors), then it is standing on some legal ground.

As Seager points out, this privilege is typically for documents actually written and filed by government officials and agencies, like court reports and records. Proving the authenticity of this British intelligence agent might be a more difficult task. In that sense, arguing fair report privilege isn’t a “slam dunk” Kirtley says, but it is reasonable to expect government officials and intelligence agencies would in some way rely on it for their investigation.

It’s also tougher for public figures to win defamation cases, but that doesn’t necessarily put BuzzFeed in the safe zone

Litigating defamation cases for public officials or public figures is different than for private individuals: It’s more difficult.

Not only would Trump have to prove these allegations are false, but he would also have to prove that they were done with “actual malice,” meaning BuzzFeed published the article knowing it was false, or with reckless disregard for the truth.

“It's conceivable Trump could have a case, especially because so many other news organizations declined to publish the information because they couldn't verify it,” Kirtley said. “This could lead to an argument that BuzzFeed acted ‘recklessly’ and made editorial decisions that were contrary to standard journalistic verification practices.”

But it’s not that easy. There could be a whole host of ethical or strategic, but not legal, reasons other news organizations didn’t publish the dossier. And just because BuzzFeed admitted that the document was unverified doesn’t necessarily mean reckless disregard.

University of Wisconsin medial law expert Robert Drechsel argues the opposite: “It is cautioning readers that such-and-such statement in the dossier has been found to be untrue as it continues wrestling with verification. So I think such acknowledgement might actually undermine any claim of reckless disregard.”

This all goes back to a 1964 US Supreme Court decision, New York Times v. Sullivan, that decided libelous statements about public officials — like Donald Trump — are protected by the law as long as the news organization doesn’t publish said statements knowing they were false.

“The idea is that if the press is afraid to write about public officials or figures for fear of being sued for crippling libel damages, political debate will be chilled,” Kirtley said.

So even if BuzzFeed was careless in the reporting, that does not necessarily qualify as “reckless disregard for the truth.”

Even if BuzzFeed did want to mire Trump’s name maliciously in negative headlines, that is different from publishing the report knowing it is false.

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