Why Donald Trump doesn’t have a libel case against BuzzFeed

This week, BuzzFeed roiled the media world when editors published a 35-page dossier containing explosive and unverified accusations against President-elect Donald Trump.

Shortly after, Trump blasted BuzzFeed in his first press conference since the election, calling the company “a failing pile of garbage.” But does he have grounds to take his grievance from the briefing room to the courtroom? Legal experts say he’d have a tough case.

Journalists that publish damaging, untrue information with knowledge of its falsity might be liable for damages. In this case, at least some of the details in the report are inaccurate; per BuzzFeed’s admission, the document misidentifies a company and describes a Russian settlement inaccurately.

But there’s something special about this case: Trump is a public figure. This changes the standard applied by the court, making it much more difficult for Trump to win; his legal team would have to prove that BuzzFeed knew its report was false or recklessly disregarded the truth at the time of publication.

“While a reporter would be obligated to intensely back up information about a private person, when it comes to a public figure, he can publish unless there was a blinking warning sign in front of his face saying, ‘This is not true!’,” said Catherine Cameron, a media law professor at Stetson University in Florida.

Whether BuzzFeed Editor-in-Chief Ben Smith made a reckless decision to publish the dossier has been a subject of much discussion over the last week. BuzzFeed declined an interview for this story. Both Washington Post media columnist Margaret Sullivan and Poynter’s Kelly McBride argued against publishing it.

In a memo to his staff, Smith acknowledged that there are “serious reasons to doubt the allegations” in the document.

But that doesn’t mean Trump could win a lawsuit, said Frank LoMonte, executive director of the Student Press Law Center. And if he did sue, he’d open himself up to lots of legal scrutiny during the discovery process.

“In a legal sense it would only open the door to look further into Donald Trump’s’ private life,” LoMonte said.

Then there’s the news value of the report itself.

“The newsworthiness diminishes the right to privacy of a public figure,” Cameron said. In this case, the notion that Russia might have potential leverage over the President-elect is important. This means details about Trumps sex life and allegations about his personal preferences are also newsworthy.

Putting questions of truth and newsworthiness aside, BuzzFeed might have another legal safety net. Section 230 of the The Communications Decency Act (CDA), a federal law implemented by Congress in 1996, could provide immunity for BuzzFeed if the website did not create the content of the document and only provided access to it.

BuzzFeed might have had this provision in mind when they published the document, Cameron said. The intent to merely provide access is exactly what editors conveyed in its story, suggesting readers see for themselves and decide what they make of it.

“A website is off the hook if they had no part in creating the content, and courts have been remarkably pro-immunity in similar cases,” she said.

However, the CDA is an old law that deals with old technology. It was originally created to regulate pornographic material on the internet, and section 230 was designed to protect internet companies, such as Yahoo, that were hosting information.

“It is questionable if Congress had the protection of professional media outlets with control over their content in mind,” Cameron said.