Buzzfeed‘s Decision to Release the Trump Intelligence Report Was Very Strange, Potentially Libelous, and Damaging to the Media

As someone who has been threatened with a libel lawsuit, it was with a good deal of surprise that I read Buzzfeed editor-in-chief Ben Smith’s rationale for publishing the secret intelligence dossier alleging that Donald Trump had deep ties to Russia and was likely compromised by the FSB. You can read his short note here:

Here’s the note I sent to @buzzfeednews staff this evening pic.twitter.com/OcAloWzVzb

— Ben Smith (@BuzzFeedBen) January 11, 2017

There are two hurdles for a plaintiff to clear, in America, if he or she intends to sue for libel—provided that plaintiff is a public figure, which is obviously the case for Donald Trump. The first is simple: Truth. Truth is an absolute defense for a journalist, regardless of how damaging the allegations may be. Step one is showing that those allegations are bogus—if a plaintiff can’t do that, he has no case. But even if he can prove that the defamatory information is false, it’s not enough. The plaintiff must also prove that the falsehoods were published with “actual malice.” That’s a tricky term, and one that doesn’t mean what you might think. “Malice,” here, is not a synonym for malevolence in the way we normally hear the word. Instead, it’s defined as the publication of a falsehood with “knowledge that the information was false,” or, alternatively, “with reckless disregard of whether it was false or not.”

As you can probably tell, actual malice is quite difficult to prove—it requires knowing a journalist’s intentions—and it’s a big reason why the United States has some of the strongest press protections in the world. In Great Britain, for instance, the burden of proof for the truth of a published claim lies with the publisher and the journalist, rather than the plaintiff, which has a serious chilling effect on journalism—it makes lawsuits more likely, and less punitive for the plaintiff because there is less chance of an embarrassing deposition when the burden of proof is reversed. Many media outlets will avoid publication of controversial material because they lack the financial war chest to fight an ensuing court battle. There’s even a phenomenon called “libel tourism,” in which an American subject can bring a lawsuit against an American author and/or publisher if the work is published in the U.K. Using their less stringent libel standards, the plaintiff often has a better chance of success. As a personal example, the U.S. and U.K. versions of a book I wrote on golf were very different—almost all of the potentially defamatory material was excised in the U.K., chiefly to prevent this kind of libel tourism.

All that being said, it seems to me like Buzzfeed’s story might qualify as libel even by the strict American standard, and may have done so because of their own admitted justifications.

Let’s start with the first hurdle, truth. Within the story itself, the authors admit that several parts of the intelligence report are wrong:

The document was prepared for political opponents of Trump by a person who is understood to be a former British intelligence agent. It is not just unconfirmed: It includes some clear errors. The report misspells the name of one company, “Alpha Group,” throughout. It is Alfa Group. The report says the settlement of Barvikha, outside Moscow, is “reserved for the residences of the top leadership and their close associates.” It is not reserved for anyone, and it is also populated by the very wealthy.

Since then, it has come out that the claims of Michael Cohen (Trump’s lawyer) traveling to Prague for clandestine meetings with the Kremlin were also false—it was a different Michael Cohen, per CNN:

Government source confirms different Michael Cohen was in Prague https://t.co/B4cwmL1Ek3

— Jake Tapper (@jaketapper) January 11, 2017

My instinct says that these revelations are just the tip of the iceberg, and that the majority of the report—if not the entire thing—will eventually be discredited. Regardless, we already have three examples of claims that are not true.

As for “actual malice,” Buzzfeed basically admits to both varieties. “Knowledge that the information was false”? Yes: It’s right there in the introduction, printed above. “With reckless disregard of whether it was false or not”? Well, if they meet the first criteria, they don’t need to meet this second one, but let’s look at Ben Smith’s language anyway:

We have always erred on the side of publishing. In this case, the document was in wide circulation at the highest levels of American government and media. It seems to lie behind a set of vague allegations from the Senate Majority Leader to the director of the FBI and a report that intelligence agencies have delivered to the president and president-elect…publishing this document was not an easy or simple call, and people of good will may disagree with our choice. But publishing this dossier reflects how we see the job of reporters in 2017.

There’s a reason that Craig Calcaterra, a writer and lawyer, sees this as a potential “Exhibit A” in future legal action. It’s basically saying that even though multiple media outlets and government sources have opted not to publish the document, as of yet, Buzzfeed went ahead because of a journalistic philosophy that is rather detached from any legal standard, and certainly meet any threshold for truth. If that’s not “reckless disregard,” it’s at least knocking on the door.

All this being said, I can’t emphasize enough that actual malice is a very, very high bar to clear, and the vast majority of libel cases fail on these grounds. I am not an attorney—I have no idea how likely it is that any legal action will be initiated, nor if there are other safeguards for Buzzfeed that I haven’t mentioned here. (I’ve reached out to attorneys with media law expertise, and will update this post when they respond.) The deposition process, also, may be a dealbreaker for Trump, as other embarrassing information could come to light in the process of litigating the case. Nevertheless, Smith’s comments on Twitter, and the admissions of the author’s themselves—along with the debunking that has already transpired—seems to put them at risk of a successful libel case.

Worst of all, if the legitimacy of this report is called into question, and if Buzzfeed is either successfully sued or at least humiliated in the court of public opinion, it will give Trump and his administration further armor against the news media at a time when that institution is not enjoying wide popularity in America. It’s a “boy who cried wolf” situation—the next time a real, strong, damning story comes out against Trump, it will be that much easier for him to dismiss it as mere media bias.