The Curious Case Of The Atlantic’s Japanese Court Settlement

Out of nowhere came an email: “Would you like an Exclusive Scoop about The Atlantic’s Legal Settlement in Japan that Resulted in Numerous Corrections to a Story?”

The offer came from Deborah Krisher-Steele, a 60-year-old Tokyo resident whose father, Bernard Krisher, had been at the center of a December 2017 story by Molly Ball in the Atlantic. “When the Presses Stop” discussed Krisher’s life as a journalist and philanthropist, though it focused on his founding of the small but influential newspaper Cambodia Daily, which had been shut down that fall by the autocratic regime of then-Prime Minister Hun Sen. Over the next six years, Krisher-Steele would fight the magazine for corrections in an effort to preserve her father’s legacy, an effort that included a lawsuit in a Japanese court that settled in January.

In the process, she helped to furnish a useful lesson in how U.S. media companies fare when they cannot fall back on the ironclad legal protections they enjoy in the United States. Along with a window into an embarrassing fact-checking breakdown at a top American media outlet.

When Ball’s story hit the internet, Krisher-Steele teed up an iPad so that her then-86-year-old father could read it. He was displeased. “He’s like, ‘That didn’t happen.’ … ‘That didn’t happen.’ He kept saying, ‘That’s not true,’” recalls Krisher-Steele.

The Atlantic nailed the high points of Krisher’s career, which included his tenure as Newsweek’s Tokyo bureau chief, steadfast advocacy on behalf of the Cambodia Daily and his work building hundreds of schools, an orphanage and a hospital for the poor in Cambodia. But there was an underreported edge to the story, as when Ball recounts meeting Krisher in the early 2000s, when she herself worked as a reporter for Cambodia Daily. The experience, she wrote, didn’t end pleasantly: Ball was diagnosed with cancer on her 24th birthday, but the publication’s “flimsy” medical insurance wouldn’t cover her treatment, she claimed. “I asked Krisher … whether he could help somehow. A phone call, a letter? He did nothing,” the story originally read.

Nothing, really? Though Krisher-Steele recalls being agnostic about her father’s initial misgivings about the story, she had the means to find out for herself. In the case of the insurance denial story, that was an archive of aging Eudora email files. Voilà: Krisher-Steele found an email from May 2003 in which Krisher pressed insurance officials for a resolution to Ball’s coverage problems. He wrote to her, “I think you are covered.” Ball responded that a separate effort had already “solved” the matter. Here was a stunning turnabout: Krisher, it turned out, had done precisely what Ball had alleged he hadn’t done.

The correspondence forced the Atlantic into a correction as well as the deletion of this line from Ball: “I felt, and still feel, that it was cruel and hypocritical for a purported humanitarian to abandon an employee when she became inconvenient.”

“I did their job, I did their fact-checking job,” says Krisher-Steele, who for two decades has helped to manage the Krisher family philanthropic projects.

Krisher died at 87 of heart failure in March 2019, more than a year after the story ran. In the months before his death, Krisher was “livid” over the Atlantic’s refusal to act on a number of his concerns outside of those addressed by the magazine’s initial round of corrections. “He wrote tons of emails, like a pit bull,” says Krisher-Steele.

Before Krisher passed, his daughter assured him that she’d continue the fight against the Atlantic. “I said, ‘Don’t worry, Opa. Whatever happens, I’ll handle it,’” recalls Krisher-Steele. She and her brother, Joseph Krisher, filed suit against the Atlantic and several employees in July 2019. Though defamation suits can’t be filed in the United States on behalf of the dead, it’s possible in Japan, where Krisher had lived starting in 1962, which in some cases allows for family members affected by the statements to pursue litigation. Japan’s defamation protections for media outlets are less robust than those in the United States.

The parties rummaged through a whole range of representations made in the story, from the serious to the miscellaneous. Into the latter basket falls Ball’s claim that Krisher, as a Newsweek correspondent, “specialized in writing puffy Q&As.” According to Krisher-Steele, discussion of the “puffy” matter spanned three court sessions. “Back and forth, back and forth on the definition of ‘puffy,’” she says. While the plaintiffs argued that the term was a knock on Krisher’s journalistic integrity, the Atlantic defended the language. It secured a statement from Lucy Dalglish, former executive director of the Reporters Committee for Freedom of the Press, to the effect that “puffy” interviews “allow people to reveal themselves,” Dalglish told me when I asked her to summarize her input. “It is a style frequently implied when you want to talk to somebody who’s very high profile and that’s the only way to get them to talk and you make a judgment that, ‘Well, it’s this or nothing.’”

Nor could the Atlantic have been happy to battle over Ball’s claim that Krisher had exaggerated the historic cachet of his 1975 exclusive one-on-one interview with Japanese Emperor Hirohito — another of the items challenged in the litigation. While Krisher-Steele argued there had been no exaggerating the scoop — and a 1989 Associated Press story backed up that position — the Atlantic, in a pre-lawsuit letter, pointed to other Hirohito interviews that, it said, provided grounding for Ball’s characterization. (Ball left the Atlantic before publication of the Krisher piece for a job at Time and now works at the Wall Street Journal.)

Turning to allegations with more direct reputational implications, Ball wrote that Krisher was “imperious and bullying,” to say the least: “According to Alan Field, a reporter who worked under Krisher, he caused at least one young woman at Newsweek to have a nervous breakdown.” Missing from that allegation was any input from the woman and any indication that the magazine attempted to secure comment from Krisher. In fact, says Krisher-Steele, neither Ball nor the magazine’s fact-checkers ever presented the nervous-breakdown claim to Krisher, who found out about it only by reading the story. And that’s flat-out unacceptable.

In January, the Atlantic settled the lawsuit with the Krishers, who had alleged defamation and invasion of privacy. The Atlantic issued a statement saying, “This was a settlement, and we did not admit any liability or wrongdoing.”

The collective payoff from six years’ worth of pushback now lies at the foot of the story:

This article originally stated that Bernie Krisher failed to assist the author with a health-insurance problem in 2003, when he was her employer. The article noted that Krisher denied this, saying he had appealed to the insurance company without success. After the article went to press, Krisher located emails from that time showing that he had attempted to help the author, but that the problem had by that time been resolved. The article also stated that Sihanouk asked Krisher to give Cambodia a newspaper; in fact, he asked Krisher to help rehabilitate the country. Lastly, the article said that two alumni of The Cambodia Daily won Pulitzer Prizes. Only one did. We regret the errors. On January 19, 2024, as a result of a lawsuit filed by Krisher’s children in Japan, the article was further updated to remove certain private details regarding Krisher’s and his wife’s health; to remove characterizations of the insurance offered by The Cambodia Daily and of Q&As Krisher conducted; to clarify the context of Krisher’s interview of Emperor Hirohito; to remove an allegation made by a former colleague of Krisher’s, add denials by Krisher’s children and two former colleagues, and add detail about Krisher’s firing; to clarify that Krisher was the chief editorial adviser, not founder, of FOCUS, and had previously misidentified the person featured in a photograph; to clarify that the non-payment of The Cambodia Daily’s cable bill was not Krisher’s responsibility; to clarify that Kay Kimsong’s experience facing defamation charges; and to clarify a question asked by the author.

By my count, that’s 16 post-publication changes, covering easy-to-check facts (Pulitzer stats), matters of taste and privacy (subjects’ medical condition), reportorial blocking and tackling (including denials), context and — well, enough material to keep a college journalism class humming for a few weeks.

If securing a bloated footnote constitutes victory in a defamation case, Krisher-Steele won big. Minutiae got hashed out over twenty-six court dates — hearings plus settlement negotiations, which began in November 2022. Discussions about a settlement, recalls Krisher-Steele, were like “debate club,” in which she pressed her conviction about the insult inherent in the “puffy” claim, among other issues. “I was the pushiest person in that room. Maybe I was channeling my dad, but I was strong and argumentative in that room,” she says. Sure enough: The claim about the nervous breakdown, details about the medical condition of Krisher and his wife, the “puffy” claim, the Hirohito exaggeration slight, among other assertions — they all went poof via the settlement agreement.

For years, conservative legal minds — Supreme Court Justice Clarence Thomas foremost among them — have pushed to upend the jurisprudence that protects U.S. media organizations facing libel suits from public figures. Such plaintiffs must prove “actual malice,” meaning that the outlet acted either with knowledge of the falsity of the claims at issue or with reckless disregard to their truth or falsity. There’s no precise analog to the “actual malice” rule in Japan, though media outlets do have some measure of protection if they can show a good-faith, even if mistaken, belief in the accuracy of the disputed statements. Safeguards for opinion journalism in Japan are also more limited than their U.S. counterparts.

In consideration of the uneven international playing ground, U.S. law bars domestic courts from enforcing foreign defamation judgments in some circumstances if the enforcement of the award would violate an American defendant’s U.S. free speech rights. This statute — enacted by Congress in 2010 and as a protection against “libel tourism” — gives U.S. news organizations a strategic choice to make: Should they decline to engage with defamation actions in foreign countries, allowing default judgments to be entered against them — and then seek to bar enforcement in American courts? The Atlantic declined to issue a statement on why it didn’t take this route. But in general, taking a default judgment in a foreign court is not an appetizing prospect for most U.S. companies, especially if they have offices or other assets in the local jurisdiction that could be vulnerable to enforcement by a local court.

The Atlantic issued this statement about the case: “Ultimately, we reached what we understood to be a good faith settlement, that did not admit any liability or wrongdoing, with Ms. Krisher-Steele and her brother, and are disappointed that they are evidently now choosing not to respect the spirit of that settlement,” said the company in a statement. Asked why she chose to tell the story, Krisher-Steele responded, “It’s true and there’s a public interest angle to it. That’s my reason.”

The takeaway here is layered. The Atlantic was defending a story whose sloppy workmanship collided with the wrong family. Sloppy, however, doesn’t mean malicious. In a hypothetical world where the suit was filed in a U.S. courtroom when Krisher was still alive, at least some of the gripes — or the whole thing — would likely have been tossed out within months. As it was, lawyers representing the magazine languished in negotiations on several ticky-tack points — negotiations that the magazine could have avoided, to be sure, if it had been more pliable in its pre-litigation dealings with the Krishers. Looking back, Krisher-Steele said that she got 90 percent of what she was seeking from the Atlantic and that she was “happy when we finally got to a point where it was fair.” She added: “I think the Atlantic had a lot of missteps throughout and I hope they learn.”

The settlement has produced some legal spillover for the Atlantic: Ruth Shalit Barrett, who sued the Atlantic for defamation over its decision to retract an article that she wrote for the magazine in 2020, filed a brief earlier this month arguing that the publication’s actions in the Krisher case “support” her own case. The “transgressions” in the Krisher story, argues Barrett, are “far more numerous and incomparably worse” than her own — yet there has been no retraction. The Atlantic says that it stands by its “full retraction and editor’s note from November 2020” and “completely reject[s] the allegations and believe[s] the suit is meritless.”

Source link

About The Author

Scroll to Top