RAQs: Recently Asked Questions

Topic: Defamation and Adding Defamatory Content to Collections - 3/12/2018
Can a library be sued for defamation for adding defamatory content to its collection?   ...
Posted: Tuesday, March 13, 2018 Permalink

MEMBER QUESTION

Can a library be sued for defamation for adding defamatory content to its collection?

 

WNYLRC ATTORNEY'S RESPONSE

As I work on “Ask the Lawyer,” one of the core concepts I keep in mind is a library’s unbiased commitment to provide information.  As set out in the ALA Policy Manual’s “Library Bill of Rights”:

Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.

This commitment is backed up by section B.2.1.1 of the ALA’s Manual:

[I]t is the responsibility of every library to have a clearly defined written policy for collection development that includes a procedure for review of challenged resources.

Every library professional I have ever met takes these commitments seriously—even when adhering to them makes things complicated or messy. But what if the “origin, background, or views” of materials provided represent an alleged attack on another?  Could the library face liability?

Let’s take a hypothetical: a new documentary called “Burgerworldwide,” alleges that the (fictional[1]) franchise “Burgerworld,” is not only making people morbidly obese, but is engaged in an international conspiracy to fix meat prices.  The local library, which has a robust collection of health-related documentaries, adds a copy of “Burgerworldwide” to its DVD collection.  The local Burgerworld franchisee, who is not only a prominent local citizen, but very active in local politics (and friends with several members of the library’s board), takes offense.  Could the library face liability?

In New York, wrongly accusing a person (or company) of a crime they did not commit can be grounds for a defamation claim.  However, for a library to be found liable for such a claim it would have to repeat, independently and of its own volition, the erroneous accusation.  "[U]nder New York law, 'all who take part in the procurement, composition and publication of a libel are responsible in law and equally so.'" [2]

Simply owning and lending a movie (or book) does not meet this test.  I found no case law showing that a library acting simply as the owner and distributor/lender of information, has ever been found liable for defamation in New York. 

Given that, liability for defamation is only actionable if the library (whether or not it adds the documentary to its catalog), promoted  or discussed the movie in a way that independently and knowingly renewed a false accusation of the alleged criminal activity.  To go back to our “Burgerworld” example: if library staff made a short recording of themselves eating Burgerworld products while saying “Our local franchise is criminally fixing prices…we can prove it!”[3] and then put the recording on Facebook , that could serve as the a basis for a claim[4] (note: having a basis to make a claim is not the same as winning the claim).

In my hypothetical, a more likely scenario than a threat of a law suit would be attempted pressure on library’s fiduciaries (trustees, board members, ED) by the local franchise owner to have the library remove the movie from its catalog.  This is why training for trustees, and referring to the established guidance for library leaders, is critical.  By consistently following its clearly defined written policies for collection development—including its procedure for review of challenged resources—a library can protect itself when acquiring and promoting access to potentially inflammatory material. 

Isn’t it nice when a commitment to library values also protects a function critical to a democratic society?

 


[1] Yes, this title was inspired by Weird Al’s video, “Fat,” as well as the place of employment of “Beavis & Butthead.” I am a fan. 

[2] Treppel, 2005 U.S. Dist. LEXIS 18511, 2005 WL 2086339, at *3 (quoting Brown v. Mack, 185 Misc. 368, 56 N.Y.S.2d 910, 916 (N.Y. Sup. Ct., Kings Cnty. 1945)); see also Conte v. Newsday, Inc., 703 F. Supp. 2d 126, 147 n.19 (E.D.N.Y. 2010) (same). 

 

[3] I know none of you would do this, and I trust that your accession policies contemplate the responsible sourcing of non-fiction material.

 

[4] Remember, any time your institution is threatened with legal action (even if groundless), before making a response, it is best to alert your attorney, alert your fiduciaries, and just as critically, alert your insurance carrier.

 

 

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