Publisher Liability: Incitement and Negligent Publication

Publisher Liability: Incitement & Negligent Publication
© Copyright 1997 Lloyd L. Rich

The author and/or the publisher under certain circumstances, either individually or jointly, could be found liable for "incitement" or "negligent publication" if a reader of their publication is seriously injured, dies or suffers damage to their personal property after acting upon or using the content contained in the publication. An important distinction between the author and publisher in measuring their respective risk of liability is that publishers have frequently been excused from liability for the content contained in their publication if the content comes from a third party, such as an author. However, even though it is rare to find a publisher liable for incitement or negligent publication, there have been a number of instances where publishers have been found liable for injuries resulting from the content contained in their publications.

Rand McNally and Company was found liable for students' injuries caused by a chemical explosion that resulted from the students following the instructions of an experiment in a textbook that failed to contain adequate warnings. The publisher of Soldier of Fortune magazine was held liable for the death caused by a "hit man" following the magazine's publication of an advertisement for a professional mercenary, styled as a "gun for hire". In a third such case, Jeppesen & Company was found liable for a fatal plane crash caused by erroneous instructions contained in their flight manual.

Incitement

Speech is protected by the First Amendment, however, speech that is directed to incite or produce lawless action and is likely to incite and create such action is not protected by the First Amendment. The courts are very hesitant to impose liability upon the publisher because it could result in a "chilling effect" on the freedom of speech. Therefore, the courts have not held publishers or other media companies liable unless the incitement was explicit, warnings were not included, or there was clear and present danger of immediate injury.

A recent case, dismissed on First Amendment grounds, involved Paladin Press. The plaintiffs attempted to show that Paladin Press' book, Hit Man: A Technical Manual for Independent Contractors, was responsible for the wrongful deaths of members of their families and that the publisher was therefore liable for the contract killings carried out by the killers who had consulted their book. Holding that the book was protected speech since its content did not "purport to order or command anyone to any concrete action at any specific time, much less immediately," the federal district court in Maryland dismissed the lawsuit.

Negligent Publication

A publisher could be found liable for negligent publication if the publisher's publication contains instructions, advice or other information that contains errors or defects or fails to warn the reader of inherent dangers, and the reader by using or acting upon such instructions, advice or other information is injured, dies or damages his/her property.

Fortunately for publishers, the plaintiffs who bring such lawsuits have a difficult burden of establishing the causal link between the publication and their injury. The plaintiffs will only establish publisher liability if they prove (1) the publisher owed a duty of care to the plaintiff and that duty of care was breached by the publisher; (2) the plaintiff's injuries would not have occurred except for the publication of the publisher's publication; and (3) the publisher could reasonably have foreseen the likelihood of harm to the reader. The duty of care element in these lawsuits usually depends upon the foreseeability of harm. In those cases where the publisher's publication created a foreseeable risk of harm the courts have generally found the publisher breached its duty of care to the plaintiff and have found the publisher liable; an example is the Soldier of Fortune case. However, in those instances where the publisher's ability to foresee injury is less clear, some courts have imposed a duty upon the publisher of warning the reader while other courts have not.

Reducing the Risk of Liability

There are a number of precautions the publisher can take to reduce its potential risk from liability. First, the publisher can have an editor (or attorney) experienced with the issues of incitement and negligent publication conduct an independent review of the contents of the publication. This review should focus upon the content containing potentially dangerous instructions or information that could pose a serious physical risk to the reader. Following this review, and based upon its recommendations, the author and publisher should revise the content accordingly.

Second, the publisher should include a "warning and disclaimer statement" in the front of the publication. These are two distinctive statements that have very different purposes; a "warning" to the reader with respect to the contents of the publication, and a "disclaimer" regarding the accuracy and reliability of the content and the publisher's liability. The warning and disclaimer statement should (1) advise the reader that his/her failure to follow instructions may be dangerous; (2) serve as a warning to the reader as to potential risks involved in following such instructions; (3) disclaim any publisher warranties regarding the accuracy or reliability of the content; and (4) place the reader on notice that the publisher will not accept liability for any injuries or damages caused to the reader that may result from the reader's acting upon or using the content contained in the publication.

It is important for the publisher to realize that no single boilerplate warning and disclaimer is appropriate for every publisher or for different types of publications. These statements need to be carefully prepared in order that they reflect the particular risks associated with reading and acting upon the contents of any specific publication. The "warning" is a notice to the reader that the reader must take care when using or acting upon the specific type of information contained in the publication. The publisher must also take care that the "warning" in itself does not contain errors or is otherwise defective. The effectiveness of the "warning" is dependent upon (1) its ability to alert the reader to the actual dangers from using or acting upon the information contained in the publication, and should if possible include specific information regarding the avoidance of injury or damage; and (2) its display in the publication so that it is readily noticeable to the reader. The "disclaimer," although it will rarely be effective in shielding the publisher from liability if the court finds that the publisher breached its duty of care to the reader, is more likely to be effective by demonstrating that the publisher did not make any specific guarantees regarding the safety or reliability of the contents of the publication.

Third, the publisher should highlight those sections of the publication that contain especially dangerous content. There are at least two ways in which this may be accomplished. The author or publisher should include in that section specific warnings and safety information, and the publisher should place in the margin of that section an appropriate symbol to make the reader aware that this section contains information that could cause serious injury or death.

Fourth, the publisher could obtain special publishing insurance that will provide coverage to the publishing company, and possibly the author, for any publication that is deemed to be of "high risk." Publishers usually have a range of insurance coverage that may include "general liability" insurance (personal injury and property damage), "media perils" insurance (defamation, privacy, copyright and trademark infringement, advertising injury and unfair competition), and "errors and omissions" insurance (incitement and negligent publication). Although the cost of an "errors and omissions" insurance policy is not inexpensive it is possible that the cost could be reduced (1) if a "satisfactory" disclaimer and warning statement appears in the publication; and (2) if an independent editor (or attorney) conducted a review of the publication for incitement and negligent publication problems, and the author and/or publisher made changes based upon the findings of the review.

Finally, the publisher should make certain that the author in the "representations, warranties and indemnification" clauses of the publishing agreement represents and warrants that the content is accurate and does not contain any information that could be injurious to the reader, and that the author will indemnify the publisher for any liability resulting from any breach of such representations and warranties.

Conclusion

Therefore, even though it may be rare for a publisher to be found liable for incitement or negligent publication, the publisher should attempt to reduce such potential risk. The following checklist should be helpful in that regard.

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