So held a Massachusetts trial court last year in Jenzabar, Inc. v. Long Bow Group, Inc. (PDF p. 4); I just ran across the case online, so I thought I’d mention it. Defendant had posted a Boston Globe article that mentioned certain allegations by one DiLorenzo; DiLorenzo had later retracted those allegations. The court held that Long Bow had no “continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether DiLorenzo was still accusing the plaintiffs of inappropriate actions.”
CDU says:
This is actually the second time I’ve heard about this case. The first was when this lawsuit prompted Google’s Matt Cutts to point out that Google makes absolutely no use of meta tags in calculating search results. Due to this lack of technical knowledge, I think the court totally blew it on the trademark claims.
December 15, 2009, 3:38 pmMark N. says:
It’s interesting that the opinion presents it somewhat as a novel matter of internet-publishing law, but as far as I can tell, the issues don’t seem very internet-specific. If there were a continuing duty to investigate the accuracy of quoted newspaper articles that later became obsolete, wouldn’t it also apply to authors of books who quoted newspaper articles? It seems plaintiffs would either need to argue the internet is inherently different (an argument I don’t see mentioned), or would need to argue that book publishers also have a duty to investigate the continued validity of all their books’ quotations, and publish errata or come out with revised editions when necessary— but I don’t think they generally do.
December 15, 2009, 3:43 pmRyan Waxx says:
What if a third party were to inform you that something’s no longer accurate? Does “no continuing duty to investigate” then become “free to ignore corrections that aren’t convenient to your article”?
December 15, 2009, 3:55 pmSteve says:
Obviously it would be far easier to update a web page than to publish a revised edition of a book.
December 15, 2009, 3:56 pmMark N. says:
There are in-between options, though. Many publishers and authors maintain online lists of errata for published books, which is about as easy as updating a webpage (since it is, literally, updating a webpage). However, I don’t think there’s a duty to do so.
December 15, 2009, 4:01 pmLaura(southernxyl) says:
If I had a newspaper with an online edition, I can’t see how admitting that people cannot look at the current edition with any confidence that I care whether it’s right or not, could help my business. Online things are different from tree versions in that once something is printed, it’s there, but online stuff is always real-time.
This is one case where “legal” doesn’t mean “not stupid” or “in the business’s best interest”.
December 15, 2009, 4:07 pmCDU says:
On the duty to update issue, is there any distinction between correcting false information and adding new information that would change the context of what’s already there?
For instance, if I post something saying, “XYZ as filed a lawsuit against ABC alleging all sorts of nasty things” and XYZ later dismisses their suit and retracts their allegation. The statement that XYZ filed the lawsuit making these allegations is still absolutely true, they filed the suit and made the allegations. However, the fact that they dismissed the suit and retracted the allegations puts it in a very different light.
December 15, 2009, 4:09 pmpublic_defender says:
I once posted a comment here calling a law professor a convicted violent felon. When the conviction was reversed on appeal, I emailed the conspirator whose post I had commented on to suggest that a note be added to my comment. He declined my request because he said that readers assume posts are true when made. So I guess at least one conspiraor agrees with at least part of the opinion in this case.
December 15, 2009, 4:57 pmPintler says:
I wonder how much workload would be generated by imposing such a duty on a newspaper? Would it become routine for acquitted defendants to demand the original article be updated with the trial results? If charges are dropped? Would the winners in every lawsuit want that mentioned?
The Ministry of Truth was a big operation for a reason – as time goes on, your inventory of what needs to be updated keeps growing. Imagine a large corporate defendant in a prominent case (Microsoft’s anti trust case, perhaps). Are there going to be legions of lawyers trolling the electronic morgue of every small town newspaper and insisting on updates? What about the internet archive – do they have to update their pages?
(as an aside, do newspapers have a legal duty to print corrections at all? They seem to, even for very minor errors, but can someone insist on it?)
December 15, 2009, 5:15 pmGuest101 says:
Anyone reading a newspaper or even a blog post understands the significance of the date stamp– that the information posted is represented as reliable as of the publication date, but no later. Even in the case of blogs, much less newspapers, the way to deal with new developments in a story is to write a new post, not go back with endless revisions and updates to the original. Otherwise you’re not writing news, you’re editing Wikipedia.
December 15, 2009, 5:48 pmLaura(southernxyl) says:
Tremendous assumption.
I’ve seen updates and edits added after the fact. It’s not impossible.
December 15, 2009, 6:21 pmGuest101 says:
It’s not impossible but it’s hardly expected, especially after a brief period of time has passed. In this case the Boston Globe article that was the source of the lawsuit was published in 2003, and the allegations to which it referred were retracted in either December 2005 or September 2006 (depending on whether you go by the date the lawsuit was dropped or the date of the letter of apology referred to on page 4 of the opinion). It is just not reasonable to impose an obligation on a newspaper to monitor subsequent developments in every article it publishes and maintain updates for a matter of years. You can call it a “tremendous assumption” that a reasonable consumer of news understands that an article dated 2003 is not reliable as to events that occurred in 2005 or 2006, but if I were litigating the case I’d be quite confident in submitting that question to a jury.
December 15, 2009, 6:53 pmSuperSkeptic says:
If instead of “publishing” something on a website relaying now defunct information, what if I simply tell a friend? Nobody would fathom that I had an “ongoing duty” to call my friend up and let him know that I was wrong. The whole concept of a “continuing duty to investigate the accuracy of” is absurd. How many people do I need to tell something before the law steps in and forces me to continuously cite-check?
December 15, 2009, 7:10 pmLaura(southernxyl) says:
Guest, perhaps you’d like to go back and reread my comment, and see if you can find where I said the newspaper had, or should have had, some legal obligation to fix the article.
December 15, 2009, 7:23 pmmarkm says:
That’s assuming the reader even notices the date stamp. I’ve seen plenty of news articles where I have to hunt through the fine print to find the date – and I’ve often started with a freshly posted link to an article, followed the link, wondered why it seemed familiar, and then found the date stamp saying it was last year’s news. Which someone just pointed out to the blogger.
And last week I was using Google to look for reviews and reactions to a line of parts I was considering for an electronic design. #1 hit was an article from 1996. (That’s like looking for a review of a new Ford and finding one about Fred Flintstone’s buggy.) But at least it had a date stamp. Outside of blogs and news outlets, very little on the internet is dated at all.
December 15, 2009, 7:26 pmGuest101 says:
Fair enough, Laura, but my reasoning applies equally to your contention that it is somehow in the paper’s business interest to maintain that kind of monitoring over previously published articles. Once again, readers are smart enough to understand that an article published years ago makes no implicit representation that nothing of significance has happened since then. It’s certainly not “stupid” foor a paper to assume that readers will understand that an article dated 2003 is only represented to be accurate as of 2003.
December 15, 2009, 7:44 pmLaura(southernxyl) says:
No, guest, it doesn’t apply “equally” at all.
To say that something is a legal obligation absolutely is not equivalent to saying it is smart or the right thing to do.
I can see a newspaper not committing itself to updating every single article it ever puts online when a miniscule fact changes. I can, however, see it committing itself to updating articles when errors or important new information is brought to its attention. As a matter of fact, there was a post here some time ago wondering if it was all right for newspapers to change online articles w/o changing URLs or article titles or make any reference to the fact that the original article had been edited, because they do that all the time. I persist in thinking it’s stupid for a newspaper to argue in court that it’s going to let incorrect online articles stand because it feels no obligation to correct untruths.
And I agree with markm, that sometimes it is very hard to even find a date on an article.
As to your assertion that “readers” know this-and-that, I think you are assuming that only smart, sophisticated readers read things on the internet. If only.
December 15, 2009, 7:56 pmGuest101 says:
Are we speaking in terms of legal standards or not? As I said above, I’m quite confident that no court or jury is going to find that a reasonable newspaper reader would fail to understand that an article dated 2003 does not reflect events that occurred three years later. If your point is that there is probably someone in the world dumb enough to actually fail in that understanding, I’m sure that’s true, but it is neither commercially reasonable nor, for that matter, practical for any business to idiot-proof its product to that high degree of idiocy.
This also raises the question of what is an “untruth.” If the 2003 article was accurate when published in 2003, there is nothing “untrue” about it in 2009 even though subsequent events have altered the situation. Is the New York Times, for example, obliged to post an update to every article from the 1980s referring to “President Reagan” to make clear that Barack Obama is now the president of the United States? We wouldn’t want to confuse people, after all.
As for markm’s point, we’re talking about newspaper websites, not Geocities. It’s an interesting question, actually, whether an undated website counts as a continual “publication” (with an ongoing duty to update) for defamation purposes, but show me a newspaper website that doesn’t prominently display a date for each online article. The Boston Globe certainly does.
Again, this happens in different ways. Errata sheets and online updates are not uncommon where articles contain errors of fact when published. And some publications post updates when the facts change soon after publication. But none of that creates a reasonable expectation that an article will be updated to reflect occurrences years later, or an obligation (legal or prudential) on the part of the newspaper to do so. Moreover, as I also noted above, what you’re suggesting is more like an online encyclopedia than a newspaper, and would require a separate staff just to manage updates to previously published articles.
December 15, 2009, 8:14 pmTweets that mention The Volokh Conspiracy » Blog Archive » No “Continuing Duty to Investigate the Accuracy” of a Newspaper Article Posted on a Web Site -- Topsy.com says:
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December 15, 2009, 8:48 pmMelvin H. says:
Re: updating articles–what happens if the magazine, newspaper, etc. has gone out of business in the meantime? (not bought out or merged, that is). For example, who would be in charge of doing such updating for, say, the “Rocky Mountain News”, or “Omni” magazine, neither of which is still in business?
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December 16, 2009, 12:25 amDan Weber says:
Maybe I’m missing something, but in this case it isn’t the newspaper that failed to update itself, it’s a third party that was reposting the newspaper article.
From what I read, the information was out-of-date when reposted. “The former CEO had retracted his allegations … before publication of the Boston Globe column on Long Bow’s site.”
It was information known to be incorrect at the time of posting, although perhaps not provably known to the plaintiff.
December 16, 2009, 10:51 amDecember 23 roundup says:
[...] “Continuing Duty to Investigate Accuracy” of Newspaper Article Posted on Web Site [Volokh on Jenzabar case, earlier here and [...]
December 23, 2009, 7:48 am