By Mike Hiestand
What do you think of your landlord? How do you rate your professors? What’s the best and worst pizza joint in town? Reader surveys have become a popular and staple feature of many college newspapers. They can be informative, useful and entertaining. They often also provide information on local services, business people or products that no other media source is going to tackle. Unfortunately, such consumer surveys — particularly those about the bad landlords, the lousy professors or the cruddy pizza joints — can also be the source of some nasty legal problems — most of which can be avoided with extra care and effort.
Different surveys pose different levels of risk. In fact, when planning a survey, the issue that probably poses the biggest legal concern is whether your survey will be strictly a “ratings survey” or one where you will also include reader comments and/or additional staff reporting.
A survey that is purely based on numerical ratings or “grades” — as long as it is conducted fairly and reasonably — is the safest option. Such surveys skip the nitty gritty details of a specific problem or person and seek to provide readers with the “Big Picture,” an overview, for example, of all off-campus housing options and tenant experiences. Asking readers to rate their landlords and properties on a scale of 1-10, and then carefully tabulating and accurately reporting the results poses few legal risks (though, of course, you may still have to field angry phone calls from landlords whose properties or whose management styles have received bad marks.) Such subjective rankings would be treated by a court as opinion; and the law is clear that pure opinion cannot be the basis for a successful libel lawsuit. A landlord might be mad as hell and think it completely unfair that he received an average ranking of 1.5, but — absent hard proof of bad data collection or inaccurate reporting of the results — it’s pretty much “tough cookies” as far as the law is concerned.
Fairness is important — for legal, ethical and editorial reasons. If you have never conducted a survey, you owe it to your readers — and those being surveyed — to spend sufficient time learning how to do so fairly with the goal of obtaining the most accurate, unbiased results reasonably possible. That includes writing questions that do not lead or mislead, obtaining a fair sample of responses and accurately tabulating and reporting the results.
But while a ratings-only survey is generally safe, it can also be kind of boring and one-dimensional. Allowing readers to explain why they gave their landlord or professor a “2” (or a “10”) will usually make for more informative and interesting reading. But it also ups the ante considerably in terms of legal risk.
Once again, “pure opinion” statements made by respondents pose little risk. For example, a reader who says that “my apartment sucks” or “the professor is boring” isn’t saying much more than he did when he gave the subjects a rating of “1.” But the tenant who explains “my apartment sucks because the plumbing constantly overflows and the landlord has never responded to my telephone calls to fix it” is giving much more than his opinion; he’s reporting facts. And they are facts that are either true or false. That is, either the landlord never responded to complaints about an overflowing toilet, or she did. If evidence shows the tenant’s “facts” to be largely false, the landlord probably has a valid claim that her business reputation has been seriously damaged by the false comment and, if that comment has been published, that’s libel.
Moreover, if that comment has been republished by you in your print-based newspaper, that’s trouble for you — even though you’re just accurately repeating what was told to you by the tenant.
[A brief aside: If your survey is conducted and published entirely online, the law may provide important protections that may shield you and your news media organization from liability, even when that same “libelous” information — if reported in your print-based newspaper — could cost you dearly. Section 230 of the federal Communications Decency Act states that providers and users of interactive computer services (e.g., which most courts now agree includes Web sites) are not liable for posting information provided by other sources. For example, a student news organization that posts a survey online that includes a space for readers to post additional comments on their own should be shielded from liability for those comments — even if they are, in fact, false and libelous — provided the news organization itself played no role in creating the comments (for example, by a staffer rewriting the comments that resulted in additional libel). A full discussion of the CDA is beyond the scope of this article, but much more information is available on the Student Press Law Center Web site. Still, it’s lousy journalism to post sloppy or misleading surveys and/or to allow readers to unfairly and falsely trash a person’s reputation online simply because the law provides liability shield. Ethical journalism should generally be blind to the type of media in which it is published.]
If you include reader comments along with the survey, you have to treat those comments just the same as if you or your staff were reporting the information under your newspaper’s byline, because that’s pretty much how a court is going to treat it. That, of course, can present some real problems because — unlike a story written by a seasoned reporter you trust — the source for most reader comments will probably be someone you don’t know — or at least don’t know very well. And that’s not an excuse that will get you very far in court.
Every comment must be carefully read. If the comment is a factual claim that could cause significant harm to a person’s reputation — and harm to a person’s business reputation is high up on that list — you have some choices to make. First, you might choose not to publish the comment. That’s obviously the easiest and safest, but if you do that too many times the usefulness of the survey is going to be diminished. If a landlord, in fact, doesn’t respond to serious tenant problems or if a professor regularly misses lectures, it would obviously be a good and helpful thing for your readers to know.
If you want to publish the comment, you’ll need to do more work, which includes the following:
1. Evaluate the source. That, of course, means you need to know who the source is. Whether or not you publish the source’s name is both an editorial decision and one on which you may need to reach agreement with the source, but running potentially defamatory comments from an unknown source is a recipe for disaster, at least when there aren’t other identifiable sources available to verify the claims. Assuming that you have tracked down the source, you need to evaluate her credibility. Does she have a reputation as a liar? Does she have any reason to harm the subject? And, of course, if you don’t believe the source you absolutely don’t want to publish her statement.
2. Track down other sources. If a respondent claims that a professor makes inappropriate sexual comments to some students, you’ve got a whole classroom full of other potential witnesses to that behavior. Reasonable reporting demands that you talk with at least a few of them about their take on the professor before allowing the publication of such serious charges.
3. If a situation allows for it, use your own eyes. If a tenant claims that garbage is strewn through the hallways of his apartment building or that the laundry room floor is slimy, .get off the phone and away from the keyboard and check out the place for yourself. Take a camera. It not only makes for better reading, it’s good proof should the landlord start making noise.
4. Whenever possible, ask for documents to back up the claims. Perhaps the tenant has written letters to the landlord voicing his complaints. Check them out. Public documents are even better (much better.) If, for example, a reader says that a particular pizza joint is a “disgusting dive with cockroaches everywhere,” it’s probably worth checking with the local health department to see how the restaurant has fared on its health inspections.
5. Avoid namecalling. Publishing comments that call the subject of the survey a “slumlord,” “tyrant,” “despot,” a “drunkard,” a Hitler (don’t ever use that one — there was only one Hitler) or describing the property as a “turd-infested hole” (all of these are actual terms used over the years), etc., may or may not be protected speech, but they practically challenge the subject to respond.
6. Generally avoid drawing legal conclusions. Remember that neither you nor the survey respondent are probably lawyers. Terms such as “fraud,” “blackmail,” “theft,” “discrimination,” “harassment,” etc. have specific legal meanings. Just because a professor seems to single out “cute” students for special treatment doesn’t necessarily mean he or she is guilty of sexual harassment.
7. Finally — and most importantly — if you are going to publish factual claims that are going to seriously damage someone’s reputation (or the reputation of a business), you must provide that person with an opportunity to respond prior to publication. Not only does this establish an essential element of fairness, it also provides you with an opportunity to catch — or at least confirm — parts of a story that may be subject to debate or question.
In the end, you may find that publishing a reader comment is simply more work than it’s worth. Or you may find that it’s better treated as a “news tip” for a more traditional news story. Both are valid responses. Surveys can provide useful information, but their role should be limited and never confused as being an acceptable or safe substitute for diligent reporting when the subject demands it.
Mike Hiestand is an attorney, based in the far, upper left corner of the “Lower 48,” and works as a legal consultant to the Student Press Law Center.
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Thomas E. Rolnicki, former executive director of the National Scholastic Press Association, died Dec. 20. He was 60.