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Imagine a case of an unjustified arrest. Say that a person is arrested in retaliation for doing something that is not a crime. The arresting authority announces what the person was arrested for, just as if it were an actual crime, but the conduct described is not actually illegal. No formal charges have yet been filed, so there is no accusation of having broken a particular law.

A news organization reports that the person was arrested, and what they were arrested for allegedly doing. They use "allegedly" in all the proper places to avoid claiming that the person actually did what they are accused of, but they don't mention that the alleged activity would not, in fact, have been illegal. (Suppose that this is something that any lawyer could have told them, but which might not be obvious to a layperson.) The reporting overall gives the impression that the person has been accused by the authorities of an action that is illegal, when this is not the case. This could plausibly harm a person's reputation.

Has the news organization defamed the arrestee by giving the impression that they were accused of a crime, when they were not? Have they done it in a legally-actionable way?

This is a hypothetical situation; I'm interested in answers for any US state.

interfect
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2 Answers2

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Defamation liability is unlikely to attach in these circumstances in the .

Most importantly, there is no liability because the reporter has not said anything false. Defendant did X, police arrested Defendant for doing X, and the reporter said that police arrested Defendant for doing X.

Even in a case where X is a crime, there still would be no liability. Although the parameters can vary, all 50 states recognize the fair-report privilege (or something like it), which generally protects accurate reports of governmental proceeding and records:

A substantially correct account — if not one-sided or editorial in nature — will be protected. Republication of defamatory statements contained in these reports will also be protected because of the public’s interest in the workings of government.

The classic formulation of the public’s interest in a fair report privilege was expressed most eloquently by Justice Oliver Wendell Holmes in the 1884 Massachusetts Supreme Judicial Court case Cowley v. Pulsifer, which involved a report of courtroom proceedings.

“It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed,” Holmes wrote.

bdb484
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Generally not

The Defamation Act contains a defence of “fair report of proceedings of public concern”. If the defence is made out, it can only be defeated if the plaintiff proves that the report “was not published honestly for the information of the public or the advancement of education.”

Dale M
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