Correcting an Online Publication of Slander [Position Paper]

Article Summary

Is there an obligation to correct a publication regarding a person who is accused of a crime and acquitted? How should one act in a case where they are unable to prove guilt, but their involvement has also not been disproven? Are the media obligated to apologize if they publicize a story that turns out to be false?
Abstract The Dilemma
The focus of the dilemma before us is the negative impact on a person’s reputation when slandered despite not performing any injustices. There are two arguments to counteract this: ethical and practical. The ethical argument is that a case file can be closed for a number of reasons and does not necessarily indicate total innocence of the accused. Therefore, even if there is no legal mandate to deal with the crime at this time, there still is a moral and social imperative to warn the public, as the need to publicize the information stands. The practical argument is that publication of a clarification does not necessarily better the accused, however the practical argument can be solved by simply consulting the suspect and asking their opinion regarding the potential clarification.

The Jewish Position
In the event of a justified journalist publication, there is no source for the existence of an obligation to appease and request forgiveness for publishing the story, even after it becomes clear that the situation is different than originally thought, as the publisher acted in accordance with halacha and did what was required of them in a professional capacity. As long as the publication was justified at the onset, one should not view the act as the sin of lashon hara but as a mitzvah – of rectifying society and removing injustice – and this is true even if the subject of the article is negatively impacted from this. However, if it becomes clear later that the publication was not accurate or even false, there is an obligation now to rectify the situation. In contrast to the legal position, the Jewish position dictates that the obligation lies on the publisher themselves. In principle, one should not rescind an article about a suspected crime as long as there may be some validity to it, however if it is completely false the halachic position is based on the societal custom regarding whether to publish or not.

Conclusions
After justified publication of criminal activity, there is no obligation to appease the subject of the publication, even if it becomes clear that the case has changed afterwards. Instead, one should publicize a correction and clarification in order to prevent unjust harm to the suspect’s reputation. When the case is closed due to lack of evidence or importance, one should add this fact in clear format in the body of the text that was published, however there is no obligation to publicize an explicit clarification regarding this. When the case is closed due to exoneration of guilt, one should publish an explicit clarification regarding this, and should also add this clarification in a prominent fashion in the original article. In the aforementioned cases one should consult with the suspect regarding whether he wants a clarification to be published and in what manner. There is no obligation to remove the article according to the suspect’s wishes. When it becomes clear that the suspicion was erroneous, one should publicize this explicitly and remove the original article from the network.

1. Introduction

One of the fundamental responsibilities of the media (of any fashion) is to search for societal injustices and bring them to the public’s attention – included within this is exposing the names of suspects in criminal activity. At times, even when the guilt of the suspects is doubtful and has not been confirmed, there is no hesitation to overtly publicize the story as is – in order to prevent harm to others and to dissuade future criminals1. Public exposure of suspected crimes can also encourage more intensive police investigation, whether as the police begin to examine the circumstances of the case or (especially) before the case has been officially opened.

However, in many cases, after a professional investigation the police decide to close the case. In cases such as these, allowing publication as is can harm the reputation of the person, as the story is connected to their name and they can be socially, professionally, and personally affected. If this is the case in printed newspapers and live media, which does not leave a long-lasting impression, the severity of the impact is heightened when dealing with digital media, as from now on any search on the internet regarding this person will bring up results mentioning the negative article.

In cases such as these, in order to correct the negative reputation created for this person, it seems that a clarification regarding the publicized story is required (even if the publication was justified at the onset); this clarification is especially necessary when the person or their family asks explicitly. In print and live media, the publication is not able to be edited and therefore the only possible rectification is publishing a message of clarification; however, when dealing with digital media, one can even edit the article that has been published and update it with the decision of the police (or alternatively one may remove the article entirely from the internet)2

2. The Ethical Dilemma

The focus of the dilemma before us is the negative impact on a person’s reputation when slandered despite not performing any injustices. There are two arguments to counteract this: ethical and practical. The ethical argument is that a case file can be closed for a number of reasons and does not necessarily indicate total innocence of the accused3. Some factors for closing a case include, for example, lack of sufficient evidence (as is required in criminal law) or the severity of the crime does not justify the many ramifications of taking a case to court (what has been defined in the past as ‘lack of public interest)4. Therefore, even if there is no legal mandate to deal with the crime at this time, there still is a moral and social imperative to warn the public, as the need to publicize stands. The practical argument is that publication of a clarification does not necessarily better the accused: perhaps much time has passed since the story has been published and has been forgotten from the public, while a message of clarification may bring the matter up once again; perhaps we are dealing with a partial exoneration alone and a message of clarification will only strengthen the suspicion regarding the other claims; and of course a message regarding the closure of a case due to lack of sufficient evidence or severity can do more harm than good. However, the practical argument can be solved by simply consulting the suspect and asking his opinion regarding the desired clarification. 

3. The Jewish Perspective

3.1 Asking for Forgiveness

A person who harms another person is obligated to ask for forgiveness even if the case involved harm through speech and there was no financial loss5. This obligation becomes stronger when denouncing them to others66, especially in publication, however, this only applies when the act was sinful. In contrast in the event of a justified journalist publication, there is no source for the existence of an obligation to appease and request forgiveness for retelling the story, even after it becomes clear that the situation is different than originally proposed, as the publisher acted in accordance with halacha and did what was required of them in a professional capacity.

3.2 Correcting the Publication

As long as the publication was justified at the onset, one should not view the act as the sin of lashon hara but as a mitzvah – of rectifying society and removing injustice – and this is true even if the subject of the article is negatively impacted from this. However, if it becomes clear later that the publication was not accurate or even false, there is an obligation now to rectify the situation, as even reports of true information with a valid purpose are only permissible when it is the most precise it can possibly be. Of course, there is no justification to publishing false information (which is included within the prohibition of slander)7. A publication of suspected guilt from the onset, as justified as it can be, must consider the possibility that the suspicion will be debunked or weakened in the future, and therefore, when necessary, the publisher assumes responsibility for correcting the publication. Releasing a description of the situation as is practically enables slander at varying degrees of severity (based on the type of update) and unjustified damage to a person’s reputation – and therefore one is obligated to prevent this from happening. 

The legal position is that the publisher is not obligated to correct the article unless asked by the offended party8. In contrast, the Jewish position dictates that the obligation lies on the publisher themselves and the merit of rectifying society by eliminating evil and bringing it to light involves the obligation to clear a person’s name when necessary.

 3.3 Factors for Rectification

When it has been determined – by the police or a professional forum responsible for dealing with the case – that the case should be closed after investigation of the matter, one should evaluate the obligation to rectify the article and the proper way to do this. In order to balance definitive harm to the subject and the concern for damaging society, one should consider the need and benefit to leaving the publication as is. 

Halacha relates to a situation where one publicizes a founded and verified rumor that a certain woman is prohibited to marry due to a number of reasons and afterwards those who shared the rumor confess that it was founded in falsehood. The Talmud discusses whether to denounce the rumor and silence it publically9in order to remove the restrictions on this woman’s marriage, or to leave the rumor as is due to the concern that there is potential validity to the claim, and it may cause future shame to the family through a disreputable lineage10. Practically, the halacha is dependent on the custom of the region: when it is accepted to publish a rumor with relative ease, one should silence it if its distributors confess; however, when it is accepted not to spread rumors without a solid basis, one should not silence it even after its distributors admit to their transgression11.

From this discussion one can learn that in principle one should not remove an article about suspected crime as long as there may be some validity to it; especially because the benefit gained from this case is not just for one family but all of society – whether regarding this suspect or by dissuading future criminals.

3.4 Capability to Rectify

A person who harms another person without justification but makes an effort to appease the victim as halacha requires has fulfilled their responsibility for rectifying their actions in the past, even if the victim is not willing to be appeased12. An exemption is one who slanders – i.e. a person who provides false and negative information – who is not considered forgiven unless the victim is appeased13. Two reasons are stated regarding this halacha:

  1. Even though appeasement itself can aid in rectifying slander, there is an obligation to repair the damage, because aside from the sorrow of the victim themselves, there has been widespread damage throughout society and many now believe that he is a corrupt individual, contrary to the truth, and will relate to him as such. Rectifying this is not possible through the framework of asking for forgiveness because it does not fix the public damage, as the majority of people are not exposed to the request for forgiveness and are unaware that the entire story was fabricated14.
  2. The appeasement itself does not benefit in cases of slander as requesting forgiveness must be done towards the person affected, however slander does not only affect the victim but their family and future progeny as well15.

When dealing with justified journalist publication, there is no obligation to appease, only an obligation to rectify, and therefore only the first rationale applies to our case. Therefore, the public nature of media, which can increase the amount of harm done, enables rectification in the same manner, through clarifying the nature of the case to the general public and letting it be spread by word of mouth as well16. Granted that there is no way to know that everyone who was exposed to the primary publication will be exposed to the second17, however this concern only strengthens the severity of slander, and as long as one can assume that the due diligence done at the initial publication was justified, the partial rectification afterwards can be considered an unfortunate necessity. This situation requires taking extra caution and precise investigation before publication of suspicions surrounding a person, as publishing from the onset with haste and journalistic negligence, aside from the severity of the action itself, makes the publisher morally responsible due to their lack of ability to rectify this matter fully – even with a published clarification. 

3.5 Causes of Case Closure and Ways to Rectify the Situation

The police may close a criminal case for three reasons18: 1) lack of sufficient evidence; 2) lack of sufficient importance of the case (previously known as ‘lack of public interest’); 3) exoneration of guilt. When there is an official authorization from the body responsible for taking care of the case regarding its closure and their reasoning19, one should act according to the following criteria. 

3.5.1 Lack of Sufficient Evidence/Importance

in situations where a case is closed because of the first two rationales, the police records remain in place legally20. In this case we are not dealing with complete exoneration and the person is still considered a suspect in the crime, therefore they can be restricted from being appointed to a security or public position and the like21. In accordance with this, one should not remove the article from circulation, as the suspicion has not been totally debunked and the justification for the initial publication stands22. To contrast, after initial publication of the suspicions, the public becomes accustomed to the assumption of guilt of the subject, and in order to lessen the damage that can be caused to the suspect due to this, one should add in a prominent fashion – in the title of the article or its body23 – that the case has been closed due to the aforementioned cause. This addition must be done in a way that searching for the suspect on the internet will not lead to results with the publication without the clarification. Granted that one can assume that publishing a separate letter of clarification will lead to better exposure to the public, however it seems that this option will be detrimental to the suspect as suspicion against them will increase as a result of the wording of these rationales2425. In any case, one should consult with the suspect regarding the clarification in order to prevent him harm as a result of the new update on one hand, and in order to allow for a more explicit or firm (or separate) clarification in line with his wishes on the other hand. However, one should not remove the article at his behest.

3.5.2 Exoneration of Guilt

in a situation where the case is closed for the third reason, this means that from a criminal law perspective the suspect is completely innocent, and therefore legally one should expunge this from their records, even the police records26. The evaluation for this determination is low probability that the suspect committed the crime27. Since this determination is not a complete elimination of suspicion, we are not dealing with a factual confirmation of total innocence, and even if there is no criminal guilt here, there is moral guilt – depending on the level of justification for the initial publication. Therefore, it seems that one should not remove the article from the internet despite the removal from police records. Instead, one should add a clarification in the title of the first article or in its body stating that the case has been closed due to the aforementioned cause. This addition must be done in a way that searching for the suspect on the internet will not lead to results with the publication without the clarification, in order to prevent slander from future exposure of case details. Additionally, to rectify the damage caused in the prior exposure, one should publish an explicit letter of clarification explaining that the case has been closed due to the aforementioned cause, so that this update will be best disseminated to the public and reflects positively on the suspect. In any case, one should consult with the suspect regarding the clarification in order to prevent him harm as a result of the new update on one hand, and in order to allow for a more explicit or firm (or separate) clarification in line with his wishes on the other hand. However, one should not remove the article at his behest.

3.5.3 Mistake

in a situation where it becomes clear without a doubt that the entire suspicion was erroneous from the onset and there is no reason to cast doubt on the moral integrity of the person in question, one should remove the article entirely from the internet, as there is no justification for this damaging publication. Additionally, one should publish an explicit letter of clarification in order to rectify the damage that has been caused to the person from the publication.

4. Conclusions

4.1

After justified publication of criminal activity, there is no obligation to appease the subject of the publication, even if it becomes clear that the case has changed afterwards. Instead, one should publicize a correction and clarification – through different methods, based on the changes in the case – in order to prevent unjust harm to the suspect’s reputation.

4.2

When the case is closed due to lack of evidence or importance, one should add this fact in clear format in the body of the text that was published, however there is no obligation to publicize an explicit clarification regarding this. 

4.3

When the case is closed due to exoneration of guilt, one should publish an explicit clarification regarding this, and should also add this clarification in a prominent fashion in the original article.

4.4

In the aforementioned cases one should consult with the suspect regarding whether he wants a clarification to be published and in what manner. There is no obligation to remove the article according to the suspect’s wishes. 

4.5

When it becomes clear that the suspicion was erroneous, one should publicize this explicitly and remove the original article from the internet.

4.6

These guidelines are dependent on reception of an official letter from the governing body in charge of managing the case regarding case closure and its rationale.

For Additional Reading:

  • How does One Fix Slander (Motzi Shem Ra)?
  • Is it Permissible to Publish Information Regarding a Person Committing of a Crime After the Fact?
  • Publishing Old Cases of Sexual Harassment

Notes - הערות שוליים

  1. See Rabbi Yuval Cherlow, ‘Policies Regarding Publication of Embarrassing News’.
  2. This position paper assumes that there is halachic and moral justification for publication of the article initially. Regarding the issue of publicizing embarrassing news, we have expanded elsewhere (see ibid. and also the position paper “Publication of Negative Information About a .Person” from Rabbi Benayahu Brunner).
  3. “Closing a police case can happen for different reasons and closing an investigation without charging [suspect] does not imply at all that the [suspect] did not commit the crime, or there is no evidence for existence of guilt” (Supreme Court 1993/03, The Movement for Quality Government in Israel v. the Prime Minister).
  4. This is the wording of the law: “[when] a prosecutor who has been transferred investigative material sees that the evidence is enough to convict a certain person, they should prosecute him, unless they are of the belief that the circumstances of the case in its entirety are not compatible with prosecution” (General Criminal Procedure Law, 5742-1982, article 62(1)).
  5. See Shulchan Aruch, Orach Chaim 606:1.
  6. Chafetz Chaim, Hilchot Lashon Hara 4:12; Be’er Mayim Chaim, ibid. 47.
  7. Ibid., Hilchot Lashon Hara 10:2, subarticle 4; Be’er Mayim Chiam, ibid. 9.
  8. The Lashon Hara Prohibition Law, 5725-1965, article 25a(1).
  9. See Gittin 89a: “מבטלינן קלא או לא מבטלינן”
  10. ASee Chiddushei HaRamban, Gittine 88b, ד”ה והא.
  11. See: Rosh, Gittin 9:11; Rema, Even HaEzer 46:4 and the commentaries there.
  12. See Shulchan Aruch, Orach Chaim, 606:1.
  13. In the words of the Yerushalmi (Bava Kama 8:7): “[one who] slanders him, he has no absolution forever” and this is the ruling of the Rema (Orach Chaim, 606:1).
  14. See: Trumat HaDeshen Responsa, Psakim VeKetavim, 212; Magen Avraham, Orach Chaim 606:5; Mishneh Brura, ibid., 11.
  15. Bach, ibid. 3..
  16. In the words of the Aruch HaShulchan: “if the abuser does rectifications and publicizes in public that the bad reputation they spread was false and asks for forgiveness, it seems to me that halachically one must absolve [him], for each person has friends and it will become known to all that the matter was false” (Aruch HaShulchan, Orach Chaim 606:2; see also ibid., Choshen Mishpat, 422:2).
  17. LeHorot Natan Responsa (10:84:13) holds, due to this factor, that even publicizing and public apologies do not atone for a slanderer, and from his words it seems that he disagrees with the opinion of the Aruch HaShulchan (see previous endnote).
  18. Guideline 3.1 of the State Prosecution: “Closing Cases with Cause of ‘Lack of Sufficient Evidence’ and ‘Exoneration of Guilt’”, article 1.
  19. Legally, this written authorization should be delivered to the suspect (see article 64 to the Criminal Procedure Law, 5742 -1982). These guidelines apply to both police investigations and professional forum investigations.
  20. The protocol for expunging police records only exists when exonerating guilt, as explained later on.
  21. According to the Criminal Register and Rehabilitation Law, 5741-1981. Even though this law primarily deals with ‘criminal register’ due to filing of an indictment – and not ‘police register’ when closing a case – in practice this is influenced by it.
  22. Beyond the underlying logic of this requirement in addition to the police records, one should add that criminal law is enforceable according to halacha (Amud HaYemini, 8; Rabbi Avraham Elkanah Kehana Shapira, Rabbi Mordechai Eliyahu, and Rabbi Dov Lior, ‘A Torah Perspective on the State’s Laws and Enacting Edicts Nowadays’, Tchumin, 3 (5742), pages 238-249; BeOhalah Shel Torah Responsa, 4:15) and therefore there is halachic weight to one’s registration in the police records.
  23. It seems that with the existing technologies, this action is not an overburdening request for the media organizations.
  24. This is the wording of the Chafetz Chaim regarding change to case details: “if one is recounting an unjust matter that someone did to their friend, and knows a part [of the story] to the merit [of the accused] regarding this act, that if the ones listening had heard this part they would not have considered the act as great of an injustice, and when the recounter eliminates this detail it makes them consider [the act] more shamefully, one must be very careful not to omit it” (Chafetz Chaim, Hilchot Lashon Hara, 10, Be’er Mayim Chaim 9). In the discussion before us we are not dealing with a change to the case details but a change in the severity of the suspicion. However, since the entire publication is based on suspicion, changes to the severity are considered like changes to the case in this matter.
  25. The Mishneh Brura writes similarly (Orach Chaim, 606:3) that when appeasing the affected party, one should detail the way they harmed them in order for the plea for forgiveness to be whole, however one should not do this for there is a reasonable concern that the victim will be embarrassed as a result. Regarding another matter, it is brought in the name of Rabbi Yisrael Salanter that if one does not know that lashon hara has been spoken about them, one should not ask for forgiveness from them since the very act of requesting forgiveness will cause them suffering that will bring the event to light (Piskei Teshuvot, 606:4).
  26. Article 62(2) of the Criminal Procedure Law, 5742-1982.
  27. This is the current guidelines of the State Prosecution (“Closing cases with cause of ‘lack of sufficient evidence’ and ‘exoneration of guilt’”): “As long as the probability that the suspect committed the crime – as indicated by evidence gathered in the case – is low, the proper cause for case closure is ‘exoneration of guilt’. As the probability that the suspect committed the crime rises, one should close the case due to the cause of ‘lack of sufficient evidence’” (article 13). Therefore, “the meaning of the cause of closure due to ‘exoneration of guilt’ is not that the suspect necessarily did not commit the crime, but that the probability that the suspect committed the crime is low” (article 15). This is in contrast to the previous guidelines, according to which ‘exoneration of guilt’ means ‘lack of any evidentiary proof that the suspect committed the crime” (ibid., article 6). And thus, in light of this new criterion, there are no precise methods to differentiate between ‘lack of sufficient evidence’ and ‘exoneration of guilt’ (article 14).

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