Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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A District Court in Florida held that the New York Times newspaper had not defamed a university professor in an article which created the impression that he was not an independent scientist. The article had relied on information obtained from the professor’s professional emails and the professor objected to the use of such information and the manner in which it was used. The Court found that the emails constituted public records and so the article fell within the bounds of the fair report privilege which allows the media to report accurately on information received from government officials. The Court recognized that the article could impact on the professor’s reputation but held that, in addition to the protection of the fair report privilege, various statements in the article were not defamatory and were protected as pure opinion. The Court stressed the importance of a free press in investigating and reporting on government action, and stated that a broad interpretation of the fair report privilege is necessary to safeguard this role.
In September 2015, the American newspaper the New York Times (NYT) published an article written by Eric Lipton which sought to document the relationships cultivated by biotechnology and organics companies with universities and how those relationships impacted on the debates around genetically modified organism (GMO) food. The article discussed and quoted Dr. Kevin Folta, a professor and former chairman of the Horticultural Sciences Department at the University of Florida (UF), and stated that Folta had “joined the campaign” to defend GMOs and became part of an inner circle of industry consultants, lobbyists, and executives. The article relied on information contained in a number of emails sent by Folta, using his UF email address and statements made by Folta in an interview.
Folta sued the NYT and Lipton in a Florida district court for defamation, arguing that the article created the impression that he was not an independent scientist. The New York Times and Lipton applied for summary judgment.
Chief US District Judge Mark E. Walker delivered the judgment of the Court. The central issue for the Court to determine was whether the article was protected under Florida’s “fair report privilege” or the privilege of pure opinion and whether the statements in the article were capable of a defamatory meaning.
The NYT argued that the article was covered by fair report privilege, and that the privilege had been triggered by the fact that the emails from which they got the information for the article were published by a government body and, alternatively, that the emails constitute public record because Folta is a public employee and the emails were created as a part of his official business. [p. 5]
Folta submitted that the privilege did not apply because the emails were not “final evidence of knowledge to be recorded” and did not relate to his official business and so could not constitute a public record. [p. 5-6]
The Court described fair report privilege as the news media’s qualified privilege “to report accurately on information received from government officials”, and explained that there are three rationales given to support the privilege: that a reporter is an agent for the public; that it promotes the proper administration of justice; and that the public has a legitimate interest in important matters. [p. 4] The scope of this privilege, originally used only in respect of official proceedings (such as court proceedings), has been expanded to include a “wide range of government-derived sources.” [p. 4]
The Court rejected Folta’s arguments and held that emails produced by UF are public record because the university is a state agency of Florida. The Court emphasized that the Florida Constitution “identifies access to public records as a fundamental constitutional right for Florida citizens” [p. 7], and made reference to the Florida case of Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 125 (Fla. 2016) which had held that the Public Records Act should be “construed liberally in favor of openness.” [p. 7] In discussing the nature of the scope of the privilege, the Court referred to the Florida case of State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003) and reiterated that electronic records – such as emails – are public record and that as the determining factor is the nature of the document, personal emails will not constitute part of record whereas emails concerning official business will. In addition, the Court noted that inter and intra-memoranda are considered to be public records but that rough drafts are not. The Court stressed that if Folta’s argument was to be supported all emails between public officials and outside individuals would fall outside the definition of public record and that, “[i]n today’s world, where almost all business is conducted electronically, this conclusion is absurd.” [p. 10]
In determining the application of the privilege the Court examined whether the article was a “fair and accurate” report of the content of Folta’s emails and stated that this inquiry “requires comparison of the report and the documents and information from which it is drawn.” [p. 10] The Court referred to Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So. 2d 972, 977 (Fla. 3d DCA 1987) and stated that the fair report privilege “requires only that the publication be ‘substantially’ correct in its representation of the information received. [p. 11] The privilege extends to situations in which the media has used “colorful language” or has not looked beyond the government documents for verification [p. 11], and the reporting does not have to be “technically precise.” [p. 12]
The Court divided the statements in the article that Folta had submitted were defamatory into four groups: those that implied Folta had defended and promoted GMOs; those that explained Folta’s motivation for participating with the GMO industry; those that argued that the GMO industry seeked out Folta and other academics’ support and swaped financial grants for their advocacy; and those that had omitted information that was favorable to Folta.
The Court emphasized that “the fair report privilege is broad and its ‘fair and accurate’ bar is a low standard, especially considering the importance placed on news media’s responsibility to report on government action.” [p. 17] In examining the nature of these statements, the Court noted that the NYT and Lipton “have a right to focus and color their report to capture and hold readers’s attention” [p. 13] and that even though there were certain technical errors made in the article which had been identified by Folta the article was still “substantially accurate.” [p. 15] Here, the Court referred to Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502 (Fla. 3d DCA 1993) and reiterated that the fair report privilege standard does not require “technical or scientific reporting.” [p. 16]
The Court expressed sympathy for Folta’s position and acknowledged his frustration at the article, but stated that this did not change the fact that the statements in the article were not legally actionable. [p. 18] The Court held that the statements in the first three groupings were all fair and substantially accurate reports. In respect of the fourth grouping – those that had omitted information – the Court referred to Huszat v. Gross 468 So. 2d 512, 515-16 (Fla. 1st DCA 1985) and noted that the fair report privilege requires that a report be “‘accurate and complete or a fair abridgment’ of the underlying information.” [p. 20] The Court highlighted that the NYT and Lipton were under no obligation to include additional information that would portray [Folta] in a more favorable light” [p. 22], and held that this grouping of statements also fell within the fair report privilege.
The Court characterized the context in which this judgment was being delivered as one in which “the Fourth Estate is under attack.” [p. 22] It added that “[w]hen those in power describe lawful investigations as witch hunts and ‘[c]arefully sourced journalism’ as ‘fake news from the enemies of the people,’ it is especially important for the judiciary to consider carefully its role in providing the media ample space to exercise their First Amendment rights.” [p. 22-23] The Court noted that the “press has won only 39% of the privacy and libel cases at trial since 2010”, and that “it seems that super-wealthy individuals—undeterred by the negative outcomes and market forces that used to prevent many defamation suits—can treat ‘suing the press as an investment’ and can pursue their objectives by funding cases and waiting for the right combination of issue, judge, and jury.” [p. 23] This led the Court to emphasize that in such a context “the importance of the press’s common law privileges becomes even more obvious”, but also that the fair report privilege “is only as strong as the courts that enforce it.” [p. 23] With reference to the Florida Constitution and the Public Records Law the Court stated that there was a “weighty significance placed on citizen oversight of their government— oversight that is assisted and largely effectuated by reliance on a free press to investigate and report on government action.” [p. 24] Although the Court recognized that the case brought by Folta was “not one cooked up by billionaire opponents of a free media”, it acknowledged that if it found in favor of Folta it would “open the door to far less meritorious suits by far less scrupulous plaintiffs, and it would contribute to the ongoing chipping-away of the rights and privileges necessary to the press’s ability to play its intended role as government watchdog.” [p. 24]
There was a fifth group of statements which the Court examined and which it distinguished from the other four categories as these statements emanated from an interview Folta had given rather than from his emails. The fair report privilege therefore did not apply to these statements as they were not sourced from a public document. The NYT and Lipton had argued that these statements were not susceptible to a defamatory meaning and that they were protected as pure opinion. The Court referred to Turner v. Wells, 879 F.3d 1254, 1263 (11th Cir. 2018) and stated that the question of whether a statement is susceptible to a defamatory meaning is a question of law and used the definition of a defamatory statement from Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1108–09 (Fla. 2008) that it is one which “tends to harm the reputation of another by lowering him or her in the estimation of the community or, more broadly stated, one that exposes a plaintiff to hatred, ridicule, or contempt or injures his business or reputation or occupation” [p. 25]. The Court added that in addition to such statements – which would constitute defamation per se as they are defamatory ‘on its face’ – Florida law allows for defamation occurring by implication. This implication can be done by “juxtaposing facts to imply a defamatory connection” or by “creating a defamatory implication by omitting facts.” [p. 26] When examining statements in this category the Court explained that it is required to consider the statement in the context of the publication as a whole and as how it would be “understood by the common mind.” [p. 26] By doing so, the Court held that the statements at issue in this case were not susceptible of a defamatory meaning.
The question of whether a statement is one of fact or opinion is also a question of law and the Court noted that “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” [p. 28-29] The Court explained that Florida law distinguishes between pure and mixed expressions of opinion where pure opinion is based on facts set out in the publication or generally known and mixed opinion is based on facts not stated in the publication. It is only pure opinion that is protected by the First Amendment. Here again the Court stressed that an allegedly defamatory statement must be assessed in the context of the publication as a whole. The Court held that the statements in the NYT article constituted pure opinion and were therefore nonactionable. [p. 30]
Accordingly, the Court held that the impugned statements either fell under the fair report privilege, were not capable of a defamatory meaning or were privileged as pure opinion, and granted summary judgment in respect of all the statements identified by Folta.
The Court closed by noting that “[i]n today’s world of “fake news” and near-constant attacks on the traditional media, this Court is especially sensitive to upholding the legal protections that enable the press to act effectively in its essential task of policing the government.” [p. 32]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Florida District Court reiterated the importance of the fair report privilege in protecting the ability of the media to report on government action. This judgment observed that ensuring a broad interpretation of this privilege is very necessary in “today’s world of fake news and near-constant attacks on the traditional media.” [p. 32] It also commented on the rise of wealthy individuals using defamation suits to pursue their own specific objectives and noted that it is particularly important for the courts to protect the ability of the media to act as a government watchdog.
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