A US court has dismissed a lawsuit brought against journalism credibility rating organisation NewsGuard, ruling that the company’s reviews are protected expressions of opinion.
Consortium News, which bills itself as “the first investigative news magazine based on the internet”, alleged that it had been defamed by a NewsGuard review which declared it was “anti-US” and “publishes false information”.
The publication also argued that, because of contract work NewsGuard had done tracking online misinformation for the US government, its First Amendment rights had been violated.
(Disclosure: the author of this article worked as a journalist at NewsGuard for three years.)
NewsGuard review of Consortium News a ‘protected expression of opinion’
NewsGuard publishes periodic reviews of news sites that assess whether publications meet its standards for certain broadly accepted journalistic practices, for example publishing corrections and disclosing ownership.
The company sells access to its reviews as a subscription service and also licenses its data for brand safety purposes. NewsGuard said in one of its submissions for the lawsuit that it has approximately 40,000 paying subscribers.
Consortium News was founded in 1995 by the late Robert Parry, an investigative journalist nominated for a Pulitzer Prize for his work on the Iran-Contra scandal. The publication cites former Pink Floyd bassist Roger Waters and left-leaning funding organisation the Cloud Mountain Foundation as major donors in recent years, and Pentagon Papers leaker Daniel Ellsberg once sat on its board.
NewsGuard’s current review for the site faults it for stories reporting, for example, that Ukraine’s 2014 Maidan revolution was organised by the US and that the Russian government did not interfere in the 2016 US presidential election.
However District Judge Katherine Polk Failla said Consortium News had not shown that NewsGuard had made any false statements or that its statements had been made with “actual malice”, i.e. a disregard for the truth.
Failla wrote: “Rather than alleging that NewsGuard’s statements are false, [Consortium News] alleges that its statements are matters of interpretation and influence that might be true, which is plainly insufficient to state a defamation claim.”
Failla likened NewsGuard’s reviews to a review by a restaurant critic, saying the company’s characterisation of Consortium News as “anti-US” and falling short of journalistic standards was “a protected expression of NewsGuard’s opinion”, particularly because the statements had been accompanied by descriptions of the facts on which they were based.
During correspondence with the editor of Consortium News, the NewsGuard journalist who reviewed the site acknowledged that it did publish corrections. Despite this NewsGuard determined in its review that Consortium News did not effectively publish corrections, which the publisher argued demonstrated actual malice on the company’s part – a prerequisite for a successful libel action in the US.
However, the NewsGuard journalist also told the editor during that correspondence that “many recent false claims have gone uncorrected” and asked whether the site’s correction practices were therefore effective. Failla said this showed NewsGuard did not doubt the veracity of its claim.
The site also argued NewsGuard showed actual malice by making a pronouncement about the credibility of the whole publication on the basis of a few articles, but the judge also dismissed this, saying that accepting this argument “would be akin to finding actual malice on the part of a restaurant critic who, without trying every dish on a restaurant’s menu, gives the restaurant a negative review based on a few bad meals”.
[Read more: Why a lack of ‘actual malice’ scuppered Sarah Palin’s New York Times libel suit]
NewsGuard government contract insufficient to demonstrate state control
Failla dismissed Consortium News’ First Amendment complaint – which was also levied at the US government – on the basis that it failed to show “that the Government controlled NewsGuard’s decision-making process and internal operations”.
In 2021 the US Air Force Research Lab awarded NewsGuard a $749,387 contract to help identify state-backed information operations targeting the US, a partnership that formally ended in 2022 and delivered its final piece of research in 2023. (The company has also previously attracted scrutiny over the inclusion of top former US government employees on its advisory board, for example former CIA director Michael Hayden and former secretary of homeland security Tom Ridge.)
But the judge said NewsGuard’s research for the government, which focused on specific claims proliferating online, was separate to the rating work that saw Consortium News labelled as unreliable.
In addition, she said, the warning that readers should “proceed with caution” over a site’s purported publication of false information “is a far cry from the threat of adverse government action” – for example prosecution or monetary penalties – that would be necessary to show coercive government conduct.
The lawsuit comes amid a broader backlash to counter-misinformation organisations. Meta chief executive Mark Zuckerberg in January said the company would end its fact-checking programme in the US, alleging that “fact-checkers have just been too politically biased and have destroyed more trust than they’ve created”.
NewsGuard has come in for similar criticism, with House Republicans launching an investigation in June into whether the company had engaged in “censorship campaigns” and Senator Ted Cruz claiming in December that the company pushes “a left-wing ideological agenda while censoring conservative perspectives”. (NewsGuard characterises Consortium News as “left-wing”, but has given similarly critical reviews to conservative sites such as The Federalist and Newsmax.)
[Read more, from 2023: Republican Matt Gaetz calls for Congress investigation into media watchdog Newsguard]
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