I think in future cases fact checking without giving the accused an incentive to retaliate against sources to prevent publication is practical with precommitments.
There may be some tricky interactions with US defamation law here. One the one hand, there’s the likelihood that fact checking will reduce the risk of error, and there is no defamation without falsity.
On the other hand, getting a source to retract during the pre-publication review process could add heft to a threat (real or feigned) to sue for defamation. In the US, the constitutional minimum for defamation liability is negligence for ordinary figures; “actual malice” (knowledge or reckless disregard of falsity) for public figures. If the would-be author knows prior to publication that the sources have retracted, that could significantly increase the defamation-liability risk under either standard. Thus, the target may have an incentive to pressure the sources into retracting to bolster the target’s defamation-suit threat against the would-be publisher.
Every situation is different, and would-be publishers should seek legal advice as appropriate. But my guess is that where the target is a public figure, following certain types of precommitment procedure might well cause a net increase in the risk borne by the publisher.
There may be some tricky interactions with US defamation law here. One the one hand, there’s the likelihood that fact checking will reduce the risk of error, and there is no defamation without falsity.
On the other hand, getting a source to retract during the pre-publication review process could add heft to a threat (real or feigned) to sue for defamation. In the US, the constitutional minimum for defamation liability is negligence for ordinary figures; “actual malice” (knowledge or reckless disregard of falsity) for public figures. If the would-be author knows prior to publication that the sources have retracted, that could significantly increase the defamation-liability risk under either standard. Thus, the target may have an incentive to pressure the sources into retracting to bolster the target’s defamation-suit threat against the would-be publisher.
Every situation is different, and would-be publishers should seek legal advice as appropriate. But my guess is that where the target is a public figure, following certain types of precommitment procedure might well cause a net increase in the risk borne by the publisher.