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VOL. 43 | NO. 49 | Friday, December 6, 2019

Tennessee high court rules against paper in defamation case

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NASHVILLE (AP) — The Tennessee Supreme Court ruled on Thursday that a newspaper cannot use the state's fair report privilege law as a shield against a defamation lawsuit for a story that was based on a one-on-one interview with a police detective.

The unanimous ruling found that the privilege only protects stories based on public proceedings or official government actions that have been made public.

The case concerns Jeffery Burke, who was accused in 2013 of stealing money from a White County football team's cookie dough fundraiser. A reporter at the Sparta newspaper The Expositor wrote about the case after interviewing the investigating officer, but some of that information later turned out to be incorrect.

Burke sued the paper in 2014. The original trial court judge found that the story fell under Tennessee's fair report privilege, a law that shields reporters from defamation suits when they report fairly and accurately on an official action or proceeding, even if that information turns out to be inaccurate.

The appeals court overturned that ruling, and on Thursday the Supreme Court agreed, finding that the one-on-one conversation between the reporter and the detective which formed the basis of the story was not an official government action or proceeding.

In it's ruling, the court wrote that the basis of the fair report privilege is "the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings." The news media acts as a surrogate for the public by attending and reporting on public meetings or news conferences, for example.

During oral arguments in October, Justice Roger Page noted that a Tennessee Supreme Court ruling earlier this year expanding protections for reporters hinges on the determination that a report is a fair and accurate account of the proceeding it depicts. Page wondered how a court could determine whether a report was a fair and accurate account of a private phone call if there was no record of what was said.

The ruling sends the case back to the trial court for further action. The justices note that their ruling does not mean the paper is liable for defamation and does not prevent the paper from raising other defenses.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said in an email that the ruling is not good for journalists or the public.

"I think the impact could be that journalists become more reticent about quoting police and other government officials in sensitive situations, and the public will get less information," she wrote. "It's a chilling ruling and, I think, doesn't fully appreciate that a great deal of news reporting in local communities takes place through interviews with government officials."

A coalition of news media organizations that includes The Associated Press filed a friend of the court brief in the case arguing that the fair report privilege should apply to on-the-record official interviews.

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