Content Liability Checklist: Pre-Publication Review, Source and Substantiation Records, Retraction and Correction Handling, Anti-SLAPP Assessment, and Insurance Tender

By Casey Scott McKay · 2024-12-28

This checklist audits the content liability position of a publisher, newsletter, research firm, or review business in the order the work has to be done. It starts with the triage rule, because a review process that reviews everything is abandoned within a quarter, and moves to the subject classification that sets the fault standard. It then covers the verification record and the review memorandum that constitute the fault defence, the drafting disciplines around opinion and quotation, the privileges that answer a claim faster than truth does, the hosted-versus-commissioned distinction, the archive and correction policies, the first forty-eight hours after a demand letter, anti-SLAPP forum mapping, and the insurance architecture. Gate items mark where work should stop.

IP and Technology > Internet | Checklist | Published 28 December 2024 - Updated 13 February 2026 | Casey Scott McKay - marksy.us

Summary. This checklist audits the content liability position of a publisher, newsletter, research firm, or review business in the order the work has to be done. It starts with the triage rule, because a review process that reviews everything is abandoned within a quarter, and moves to the subject classification that sets the fault standard. It then covers the verification record and review memorandum, the drafting disciplines around opinion and quotation, the privileges, the hosted-versus-commissioned distinction, the archive and correction policies, the first forty-eight hours after a demand letter, anti-SLAPP forum mapping, and insurance. Gate items mark where work should stop.

Keywords: content liability checklist · triage rule · subject classification · verification record · review memorandum · opinion drafting · quotation practice · recording consent · fair report privilege · hosted versus commissioned content · archive policy · correction drafting · retraction windows · anti-SLAPP forum map · insurance tender

How to use this checklist

| Phase | What it produces | Who runs it | Gate | |---|---|---|---| | 1. Triage | A written rule with a service standard | Counsel and editorial | Rule written and trained | | 2. Classification | A recorded subject determination per piece | Reviewer | Reason recorded, not just the label | | 3. Verification | A file supporting every factual assertion | Writer and desk | No assertion without a line | | 4. Memorandum | A short document per reviewed piece | Reviewer | Residual risk named and accepted | | 5. Drafting | Trained habits on opinion and quotation | Editorial | Recording consent answered by state | | 6. Privileges | A privilege position before a truth analysis | Reviewer | Attribution adequate | | 7. Hosted content | A clear line between hosted and commissioned | Counsel | Contributed pieces treated as own | | 8. Archive | A written policy and a request log | Counsel | Posture decided in advance | | 9. Demand response | A hold template and a retraction diary | Counsel | Tender on the first letter | | 10. Forum and cover | An anti-SLAPP map and read exclusions | Counsel | Retroactive date checked |

The matter. A research firm publishes critical reports on public companies. Four analysts, one compliance officer, no pre-publication review process, no verification standard, an eleven-year archive, a media liability policy nobody has read, and a demand letter from a company named in last month's report alleging that three statements are false and that the firm knew it.

Phase 1. Write the triage rule

[ ] Route to review: content naming identifiable individuals in a critical context; content alleging illegality, misconduct, incompetence, or dishonesty; content about pending or threatened litigation; content about a named company's products where a competitor has an interest; content from an unfamiliar contributor; content resting on a single source; content the writer has flagged; and anything about a subject who has previously threatened.
[ ] Release everything else on the writer's own responsibility, with a standing instruction to escalate on doubt.
- Why. A process that reviews everything reviews nothing, because it will be abandoned within a quarter and the pieces that skip it will be the ones that needed it.
[ ] Publish a service standard and meet it — twenty-four hours for routine, same day for breaking — since a reviewer who takes three days on a two-day story gets routed around.
[ ] Make escalation costless. A writer who fears that raising a concern will delay publication will not raise it, and the concern is exactly what the process exists to capture.
[ ] Put the rule in writing and train to it, since an unwritten rule is applied inconsistently and inconsistency is itself evidence.
[ ] [Gate] The rule exists in writing and the editorial team has been trained on it.

Phase 2. Classify the subject and record why

[ ] Identify public officials, for whom actual malice applies to statements relating to official conduct under New York Times Co. v. Sullivan — knowledge of falsity or reckless disregard, proved by clear and convincing evidence.
[ ] Identify all-purpose public figures, a rarer and narrower category than journalists assume, following Curtis Publishing Co. v. Butts.
[ ] Identify limited-purpose public figures — those who voluntarily injected themselves into a particular public controversy.
- Trap. The classification is statement-specific rather than person-specific. A businessperson may be a limited-purpose public figure as to an industry dispute and a private figure as to everything else, and the review has to ask which the statement concerns.
[ ] Treat everyone else as a private figure, for whom fault — generally negligence — suffices under Gertz v. Robert Welch, Inc., with presumed and punitive damages limited absent actual malice.
[ ] Record the classification and the reason, since it is the first question in any later analysis and reconstructing it years afterwards is unreliable.
[ ] Do not build a process that depends on the standard holding, since there is sustained argument about revisiting the actual malice framework.
[ ] [Gate] No reviewed piece proceeds without a recorded classification.

Phase 3. Build the verification record

[ ] Check every factual assertion against a source and record the check, naming the document or the person.
- Why. The record is the fault defence against actual malice and negligence alike, and it has to exist as a habit before anyone knows which piece will be sued over.
[ ] Name confidential sources in the internal file even where the piece does not, since a file that says "a source" defends nothing.
[ ] Keep the documents, not just the references, because a citation to a filing is weaker than the filing.
[ ] Record the writer's own confidence where a claim rests on a single source or an inference.
[ ] Flag and resolve expressed doubts before publication.
- Trap. A message from a reporter expressing serious doubt about a claim, followed by publication, is the classic actual malice exhibit. Resolve the doubt or do not run the claim.
[ ] Record the response request: when the subject was approached, what was put to them, what came back, and where no response was received, the deadline given.
[ ] Confirm identification by more than a name, since wrong-person claims are common, entirely preventable, and hard to defend.
[ ] Read for implication, because a piece composed entirely of accurate statements can convey a false and defamatory impression through juxtaposition, omission, or emphasis.
[ ] Read headlines and captions separately, since a reader who reads nothing else forms an impression from them and courts have treated headlines as capable of being defamatory even where the body is accurate.
[ ] Retain the file under a stated policy, organised so it can be produced.
[ ] [Gate] No assertion runs without a line in the verification file.

Phase 4. Produce a review memorandum

[ ] Write it rather than clearing orally. Fifteen minutes, and it is the document that answers a demand letter two years later.
[ ] State the subject classification and reason.
[ ] List the defamatory meanings identified, which is the discipline that catches implication because writing them out forces articulation of what a reader takes from the piece.
[ ] State the support for each: document, interview, or inference, with the file reference. An assertion with no line here should not run.
[ ] State the privilege position, including whether any statement is a fair report and whether the attribution is adequate.
[ ] Record the opinion analysis for each evaluative statement: whether the underlying facts are disclosed and accurate.
[ ] Record the response request and outcome.
[ ] Record the identification check.
[ ] Record the headline and caption read separately, with the impression each conveys stated.
[ ] Name the residual risk and who accepted it.
- Why. A publisher that records a considered decision to run with identified residual risk is in a materially different position from one whose file is silent.
[ ] File it with the piece and retain it under the stated policy.
[ ] [Gate] No reviewed piece publishes without a memorandum naming who accepted the residual risk.

Phase 5. Train the drafting disciplines

[ ] Show the work rather than labelling the opinion. Milkovich v. Lorain Journal Co. rejected a separate privilege for statements labelled opinion; the protection turns on whether a statement can be proved true or false and whether it implies undisclosed defamatory facts.
[ ] Set out the facts and draw the inference visibly rather than asserting the conclusion, since a conclusion drawn from disclosed and accurate facts is generally protected.
[ ] Never compress quotations. Masson v. New Yorker Magazine, Inc. permits cleaning grammar and removing verbal tics but not a material change in meaning, and combining separated answers into one quoted passage changes meaning even where every word was said.
[ ] Never present paraphrase inside quotation marks.
[ ] Mark ellipses and brackets honestly and consider whether omitted material changes the sense.
[ ] Record interviews, and answer the consent question by state in advance since one-party consent is the federal baseline and several states require all-party consent with criminal exposure attached.
[ ] Check quotations from documents against their context, where a phrase lifted from a longer passage frequently says something the passage contradicts.
[ ] Check the recording before responding to a disputed quotation, since the response is evidence and a defence offered before checking creates the fault problem it was meant to avoid.
[ ] [Gate] The recording consent position exists per state before any interview is recorded.

Making the process survive contact with the newsroom

The programme fails on adoption rather than on design, and adoption is a matter of how the review function behaves. These are checklist items about the reviewer, not about the content.

[ ] Be fast, measurably. Publish the service standard and report against it. A reviewer who misses it consistently will be routed around, and the pieces that skip review are the ones that needed it.
[ ] Say what would fix it, not what is wrong. "This sentence asserts an inference the file does not support; either add the document or reframe it as what the record shows" is usable. "This is risky" trains the writer to stop asking.
[ ] Do not rewrite. A reviewer who edits prose loses the writer's cooperation and acquires responsibility for the piece. Identify the problem and let the desk solve it.
[ ] Explain the standard once, properly. Writers who understand why labelling an opinion does not protect it, and why compressing a quotation is dangerous, stop producing those problems. Writers who are simply told no learn to avoid the reviewer.
[ ] Never penalise a flagged doubt. A reporter who raises a concern has done the right thing, and a culture that punishes it produces the unescalated message expressing serious doubt — the exhibit that decides an actual malice case.
[ ] Accept residual risk openly and record it. Some pieces should run with identified risk, and a function that only ever counsels caution is one the newsroom stops consulting.
[ ] Report quarterly on what the process caught: identification errors prevented, unsupported inferences reframed, privilege positions secured. It is what keeps the function funded during the years when nobody has been sued, which are exactly the years when the habits quietly lapse.
[ ] Review the triage rule annually against what actually generated complaints, since the categories that produce claims shift with what the business publishes.

Phase 6. Run the privilege analysis first

[ ] Check the fair report privilege before assessing truth.
- Why. A fair and attributed report of an official proceeding or public record is not actionable whether or not the allegation it reports is true, and proving the allegation may be impossible.
[ ] Confirm the account is fair and substantially accurate as a report of the proceeding, and attributed as such.
- Trap. A piece that reports a complaint's allegations and then adopts them, or reports the allegation without indicating it comes from a filing, may lose the privilege. Independent assertions placed alongside privileged material are not covered by it.
[ ] Check whether neutral reportage is recognised in the forum, since it is accepted in some jurisdictions and rejected in others and should never be assumed.
[ ] Check the wire service defence where material is republished from a reputable agency.
[ ] Consider common interest and self-defence privileges in the corporate context, remembering that abuse defeats them.
[ ] Check for consent, which is a complete defence and more often available than publishers realise where a subject provided the information for publication.
[ ] Apply substantial truth as the backstop, since a statement is not actionable because a detail is wrong if its sting is substantially true, and on matters of public concern involving a media defendant the plaintiff bears the burden of proving falsity under Philadelphia Newspapers, Inc. v. Hepps.
[ ] [Gate] The privilege position is settled before any substantiation effort begins.

Screen for the adjacent torts

The review should check more than defamation, because several theories reach material a defamation screen passes and they are pleaded together as a matter of course.

[ ] False light — publicity placing a person in a false light highly offensive to a reasonable person, recognised in many states and rejected in others, overlapping heavily with defamation and occasionally reaching a technically accurate portrayal that creates a false impression. The screen is the implication question the memorandum already asks.
[ ] Public disclosure of private facts — truthful publication of private matters not of legitimate public concern, heavily constrained where the information was lawfully obtained following Florida Star v. B.J.F., but live where the material is genuinely private and the public interest thin.
[ ] Intrusion upon seclusion — about the method rather than the publication, and not answered by truth. Screen the newsgathering, not just the text.
[ ] Trespass and deceptive consent, where entry obtained by misrepresentation has produced claims and consent obtained by deception may be no consent.
[ ] Right of publicity, where the risk concentrates in promotional use of editorial content — a subject's photograph in an advertisement for the publication is a different question from the same photograph in the piece.
[ ] Intentional infliction of emotional distress, constrained by Hustler Magazine, Inc. v. Falwell and Snyder v. Phelps but pleaded routinely.
[ ] Trade libel and product disparagement, typically requiring special damages, which is a real obstacle for a plaintiff and a reason product content can be reviewed more lightly than personal content.
[ ] False advertising under 15 U.S.C. § 1125, with standing governed by Lexmark International, Inc. v. Static Control Components, Inc.. The commercial speech boundary is the whole analysis, and a publisher that also sells products should know which side each statement falls on.
[ ] Third-party unlawful acquisition, where Bartnicki v. Vopper protects publication of lawfully obtained material of public concern provided the publisher was not involved in the acquisition — with documented non-involvement the safest posture.
[ ] Source protection limits, since Branzburg v. Hayes rejected an absolute privilege, shield laws vary in scope and in who qualifies, and confidentiality promises bind under Cohen v. Cowles Media Co..

Phase 7. Separate hosted content from your own

[ ] Identify what is genuinely third-party content, which 47 U.S.C. § 230 generally protects by barring treatment of a provider as the publisher of information provided by another content provider.
[ ] Moderate without fear of forfeiting the protection, since the statute expressly contemplates good faith restriction of objectionable material and publishers routinely moderate less than they should on a misreading of it.
[ ] Avoid material contribution, since soliciting content in a form that makes it unlawful, editing it into a defamatory shape, or requiring it as a condition of use takes the provider outside the protection.
[ ] Treat commissioned and freelance pieces as the publisher's own content.
- Trap. This is the distinction most often got wrong. A contributed opinion column feels like someone else's speech and is legally the publisher's, published under its masthead.
[ ] Treat headlines written over contributed pieces as the publisher's own speech, even where the body is not.
[ ] Note the carve-outs, including federal criminal law and intellectual property claims, which is why copyright claims run under an entirely different framework.
[ ] Keep moderation records, since they are the evidence where a decision to leave content up is challenged and equally where a removal is challenged as inconsistent with published policy.
[ ] Publish moderation standards and apply them, because inconsistent application is the allegation that survives.
[ ] [Gate] The workflow distinguishes hosted from commissioned content at intake.

Contributors, freelancers, and syndication

Content arrives from outside the business and leaves it again, and both directions carry liability the internal process does not touch.

[ ] Treat every commissioned piece as the publisher's own content and put it through the same triage, classification, verification, and memorandum process as staff work. The temptation to trust a known contributor is the mechanism by which unreviewed material publishes.
[ ] Require contributors to deliver their source material, not merely their piece. A publisher that cannot produce the underlying documents for a freelance investigation has no fault defence for it.
[ ] Do not rely on contributor indemnities, which are worth their collectability and are usually nothing. Requiring contributors to carry their own cover is possible and unusual.
[ ] Warrant only what you can support in syndication agreements, since a broad content warranty given to twenty partners multiplies a single article's exposure without multiplying its revenue.
[ ] Allocate defence control in syndication, since a partner defending a claim about the publisher's article, with the publisher indemnifying, is a partner making decisions the publisher pays for.
[ ] Track where syndicated material publishes, because each partner's posting is its own publication with its own forum and its own limitation clock, and a publisher that has licensed content broadly has accepted forums it never considered.
[ ] Address translations, which are separate publications and can carry meanings the original did not.
[ ] Check aggregator and licensee terms for the same allocation questions, since content licensed for machine processing or republication travels further than the agreement's drafters imagined.
[ ] Keep a register of who holds a licence to what, so that a takedown or correction can be propagated rather than applied only to the original.

Phase 8. Write the archive and correction policies

[ ] Distinguish the request categories: a demand that the piece was always false is a defamation matter; a request that the piece is accurate but circumstances have changed is something else; a request under a privacy regime with a right to erasure is something else again.
[ ] Decide the general posture in advance — never amending, routinely appending updates, or selectively de-indexing. Each is defensible; having no position is not.
[ ] Prefer appending a dated update over deleting, which preserves the record, satisfies most legitimate requests, and avoids the appearance of concealment.
[ ] Use de-indexing as a partial remedy where it satisfies a requester without altering the archive.
[ ] Watch republication. The single publication rule runs the clock from first publication, but substantive amendment, re-promotion, or a new edition can restart it, converting a courtesy into a liability.
[ ] Treat resurfacing an old piece as a decision with a limitation consequence, since editorial teams do it weekly in newsletters and social posts without knowing.
[ ] Record the first publication date in a form that survives a platform migration, since the limitation defence depends on proving it and a content management system replacement routinely loses it.
[ ] Draft corrections to state the accurate position, not to rehearse the inaccurate one.
- Why. A correction reciting the original allegation republishes it to every reader who missed it the first time and every reader who had forgotten.
[ ] Be specific about what was wrong, since a vague note invites the reader to assume the error was larger than it was and is useless as evidence of good faith.
[ ] Do not editorialise in a correction, because explanations, source-blaming, and defences of the reporting become exhibits.
[ ] Distinguish corrections, clarifications, and updates, since conflating them overstates a fault the publisher did not commit or understates one it did.
[ ] Route corrections through the same review as the original, since they are published statements about identifiable people drafted fastest and checked least.
[ ] Log every archive request and every correction, since consistency defends against an allegation of arbitrary treatment and the log reveals patterns a reporter or source is generating.
[ ] Verify any court order demanding removal independently, since reputation management operations circulate fraudulent orders.
[ ] [Gate] The archive posture is written before the next request arrives.

Phase 9. Prepare the first forty-eight hours

[ ] Have the litigation hold template ready, covering drafts, notes, recordings, messages, and the editorial file.
- Why. The publisher's own records are the evidence on fault, and a spoliation problem converts a defensible case into an indefensible one.
[ ] Say nothing substantive in the first hours, since an intemperate reply becomes an exhibit and a hasty concession forecloses defences.
[ ] Pull the verification file before responding, because the answer depends on what the record shows rather than on what anyone remembers.
[ ] Check the retraction window in the relevant states, many of which condition punitive or general damages on a demand and a timely response.
[ ] Decide whether the piece is defensible before deciding whether to correct, since a correction is not an admission but is evidence.
[ ] Tender to insurance immediately, every time. Media liability policies require prompt notice and late notice is a coverage defence.
[ ] Assess anti-SLAPP availability at once, because the procedural posture shapes everything that follows.
[ ] Identify the newsgathering exposure separately, since intrusion, trespass by deceptive consent, and inducing breach are not answered by truth and are pleaded alongside.
[ ] [Gate] Nothing substantive is sent to a complainant before the hold, the tender, and the file review.

Damages, and what a claim is worth

Give the client the real numbers early, because publishers overestimate catastrophic verdicts and underestimate ordinary defence cost, and the distortion drives how demands are answered.

[ ] Establish whether special damages are provable. A plaintiff who cannot show lost business, employment, or transactions has a claim with a value problem, and identifying that early changes the negotiating posture.
[ ] Flag defamation per se categories — allegations of crime, of loathsome disease, of professional incompetence, and of serious sexual misconduct, varying by state — since they carry general damages without proof of specific loss and are what make a case dangerous.
[ ] Apply the constraint on presumed and punitive damages absent actual malice under Gertz v. Robert Welch, Inc..
[ ] Use the retraction statute where it applies, since many states condition punitive or general damages on a demand and a timely response.
[ ] Price the anti-SLAPP fee exposure to the plaintiff, which is the main deterrent operating before any suit is filed.
[ ] Budget defence cost honestly. Most matters resolve well below any headline verdict and well above what a publisher expects, because discovery goes to editorial process and is intrusive by design.
[ ] Explain that injunctions are generally unavailable. Prior restraint doctrine makes an order prohibiting publication extraordinarily difficult to obtain, which is why claims arrive after publication and why the pre-publication process is the only real control point the business has.
[ ] Check the insurance retention against that profile, since a high-deductible policy protects against catastrophe and funds nothing routine.

[ ] Confirm the retention policy was adopted before any subpoena and is applied uniformly, since a publisher cannot be compelled to produce what it does not have and a policy adopted in advance is legitimate while one adopted after a demand is a different matter entirely.
[ ] Check that the hold suspends the retention policy for the material in scope, because an automatic deletion running during a live matter is the spoliation problem the hold exists to prevent.
[ ] Identify where the editorial file actually lives — messaging applications, personal devices, shared drives, and note-taking tools — since a hold that covers the content management system and nothing else covers very little.

Phase 10. Map the forum and read the cover

[ ] Map anti-SLAPP statutes for the states that matter, since some are broad with mandatory fee awards, some narrow, and some nonexistent.
[ ] Check federal application per forum, since whether a state anti-SLAPP statute applies in diversity has divided the circuits and the answer determines whether removal helps or hurts.
[ ] Value the discovery stay above the fee award, since defamation discovery goes to editorial process, sources, and internal communications and is what makes these cases expensive regardless of outcome.
[ ] Treat availability as a structural factor in terms, incorporation, and place of publication.
[ ] Buy media liability cover, which reaches defamation, privacy torts, and content infringement, since general liability covers advertising injury on much narrower terms and professional liability does not reach editorial content.
[ ] Read the exclusions before the grant: intentional acts, criminal conduct, prior knowledge, contractual liability assumed, and claims arising from the insured's own products.
- Trap. A publisher that also sells a product may find its review of a competitor's product excluded.
[ ] Check the retroactive date when changing insurers, since it determines the archive exposure.
[ ] Negotiate panel counsel additions at renewal, not at claim.
[ ] Stop relying on freelancer indemnities, which are worth their collectability.
[ ] Allocate liability and defence control in syndication agreements, since indemnifying twenty partners for one article multiplies exposure without multiplying revenue.
[ ] Set the retention against the claim profile deliberately, since most matters resolve below a substantial deductible.
[ ] [Gate] The exclusions and the retroactive date have been read by someone who will handle the claim.

A note on order

The phases are ordered by dependency, and the ordering matters more here than in most audits because the work is almost entirely preventive.

The triage rule comes first because everything downstream depends on knowing which content enters the process. A verification standard applied to nothing protects nothing.

Classification comes before verification because how much verification is required depends on the fault standard, and a private-figure piece needs a different level of care from a public-official piece about official conduct. Reversing them produces either wasted effort or insufficient care, and usually both on different pieces.

The memorandum sits after verification because it is a record of work already done rather than a substitute for it. A memorandum written without the file behind it is an assertion, and it will be read as one.

Drafting training and the privilege analysis are continuous rather than sequential, and both belong early because they change what writers produce rather than catching what they produced.

Hosted content, the archive, and corrections are policy work: each produces a document that will be quoted back to the business, and each is far better written in advance than improvised under a dispute. The archive policy in particular is written by every publisher eventually, and the ones who write it during a crisis write it badly.

The demand response and the forum and insurance work sit last on the page and first in an emergency. If a demand letter is already on the desk, start at Phase 9, then Phase 10, then come back to the beginning — and build the programme while the business is still frightened, because a business that has just been sued is the only version of itself that will implement a review process without argument.

[ ] Confirm somebody owns the correction log, the archive request log, and the moderation log, and that ownership survives staff turnover. Each of the three is evidence of a functioning process, each is abandoned within a year of the person who started it moving on, and an abandoned log is worse than none because it documents the moment the process stopped.

[ ] Diarise a twice-yearly review of the whole checklist, because the categories that generate claims shift with what the business publishes and a programme designed for last year's output protects last year's business.

Outcome. A business that has run this checklist can produce, on the day a demand letter arrives, the classification of the subject and the reason for it, a line of support for every assertion the letter challenges, a memorandum naming who accepted what risk, a privilege position, and an insurer already on notice. That is the difference between a matter that resolves in weeks and one that becomes a two-year discovery exercise into how the business makes editorial decisions.

Key Authorities at a Glance

| Authority | What it settles | Phase | |---|---|---| | New York Times Co. v. Sullivan | Actual malice for public officials | 2 | | Curtis Publishing Co. v. Butts | Standard extended to public figures | 2 | | Gertz v. Robert Welch, Inc. | Private figure fault; limits on presumed and punitive damages | 2 | | Milkovich v. Lorain Journal Co. | No separate opinion privilege; provable falsity is the test | 5 | | Masson v. New Yorker Magazine, Inc. | Altered quotations and material change in meaning | 5 | | Philadelphia Newspapers, Inc. v. Hepps | Plaintiff bears the burden of falsity on matters of public concern | 6 | | Hustler Magazine, Inc. v. Falwell | Parody not reasonably understood as fact is protected | 6 | | Snyder v. Phelps | Speech on matters of public concern protected against tort liability | 6 | | 47 U.S.C. § 230 | Provider not treated as publisher of third-party content | 7 | | Bartnicki v. Vopper | Publication of lawfully obtained material of public concern | 9 | | Florida Star v. B.J.F. | Constrained liability for lawfully obtained truthful information | 9 | | Branzburg v. Hayes | No absolute reporter's privilege | 9 | | Cohen v. Cowles Media Co. | Promissory estoppel available to a source | 9 | | 15 U.S.C. § 1125 | False advertising and false designation of origin | 6 | | Lexmark International, Inc. v. Static Control Components, Inc. | Standing framework for false advertising claims | 6 |

The five things people get wrong

One: budgeting for copyright and getting sued for defamation. A content business builds its legal function around images, quotations, and licensing, and the expensive claims come from sentences about people. The two risks look similar from a distance and behave nothing alike: copyright asks whether you copied, defamation asks whether a statement of fact about an identifiable person was false, damaging, and published with the required fault. The reallocation is the first decision and it is almost never made until after a demand letter arrives.

Two: believing that labelling a statement an opinion protects it. Every writer believes it and the doctrine says otherwise. The protection turns on whether a statement can be proved true or false and whether it implies undisclosed defamatory facts, which means "in my opinion, Smith is a liar" is exactly as actionable as the same sentence without the preface. The fix is a drafting habit rather than a legal argument: set out the facts, draw the inference visibly, and let the reader assess it.

Three: having no verification record. The fault standard is about the publisher's state of mind, which is proved from the publisher's own documents. A business with a file showing every assertion checked against a named source has the best available evidence that it was not reckless. A business with no file has nothing to put against a reporter's message expressing doubt — and there is always a message expressing doubt, because good reporters have doubts and write them down.

Four: handling the first forty-eight hours badly. The demand letter arrives and the instinct is to reply. The correct sequence is a litigation hold, an insurance tender, a retraction-window check, and a file review, with nothing substantive said until all four are done. Publishers reverse this routinely, and the reply written on day one becomes an exhibit, the tender made on day ninety becomes a coverage dispute, and the retraction window closes unnoticed.

Five: treating a contributed column as somebody else's speech. Hosted third-party content is generally protected and commissioned content is not, and the two feel identical to an editor. A reader comment is one thing; an opinion piece commissioned from an outside writer, edited by the desk, and published under the masthead with a headline the publisher wrote is the publisher's own statement in every respect that matters. This distinction is worth training explicitly, because the intuition runs the wrong way.