Content Regulation / Censorship, Defamation / Reputation, Licensing / Media Regulation
Editorial Río Negro S.A. v. Neuquén
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The U.S. District Court of Southern Florida found that BuzzFeed, Inc. could assert fair report privilege over an article with an attached dossier (Steele Dossier) listing alleged connections between the Trump campaign and Russia but could not assert the neutral report privilege. The Plaintiffs brought a libel suit against BuzzFeed, Inc. claiming that the media company failed to take due diligence to investigate the merits of the dossier before publishing. The Court reasoned that the report may be protected under section 74 of the New York Civil Rights Law as a report of an official proceeding because it referred via hyperlink to a news report that described confidential briefings with government officials and asserted that the FBI was investigating the truth of the claims in the dossier, which were all elements that would lead an ordinary person to understand that the dossier was connected to a proceeding.
Please note that the following analysis is based on the U.S. District Court of Southern Florida’s Ruling on the Motion for Partial Judgment on the Pleadings. This analysis will be updated as the case proceeds.
BuzzFeed, Inc. is an online media company that produces content ranging from pop culture to news articles. On January 10, 2017, BuzzFeed News published the article, These Reports Allege Trump Has Deep Ties to Russia. This article contained a 35-page dossier that BuzzFeed News stated: “includes specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians.” BuzzFeed News also reported that the claims were being investigated and that the dossier contained “some clear errors.” BuzzFeed News published the dossier, as well as remarks from President Trump and members of his staff denying the claims in the dossier. The document has become known as the Steele or Trump-Russia dossier and can be found here. The article included links to various external sources including the CNN article, Intel chiefs presented Trump with claims of Russian efforts to compromise him.
Aleksej Gubarev, a Russian technology executive, and the corporations he is connected to (re XBT Holdings and Webzilla, Inc.) brought a defamation suit against BuzzFeed, Inc. claiming that the statements made about them in the dossier were false. The Plaintiffs further alleged that while BuzzFeed News had tasked reporters with investigating the claims, they had not been contacted by BuzzFeed News regarding the merits of the claims. Furthermore, the fact that BuzzFeed News could not verify the claims, knew of the existence of some errors and published it regardless showed that BuzzFeed, Inc. had acted “without reasonable care for, or with reckless disregard as to the truth.” The Plaintiffs also claimed that even though their identities were redacted, the dossier had defamed them and caused loss of business.
BuzzFeed, Inc. presented two affirmative defenses in an amended answer in regards to the decision to publish the dossier: fair report privilege and the neutral report privilege. On September 29, 2017, the U.S. District Court of Southern Florida recommended that “the parties move for partial judgment on the pleadings with respect to [BuzzFeed’s] asserted privileges.” On January 18, 2018, the Plaintiffs obliged and filed a ‘Motion on Partial Judgment on the Pleadings.’
On June 2, 2018, U.S. District Court of Southern Florida Judge Ursula Ungaro released her decision regarding the ‘Motion on Partial Judgment on the Pleadings.’ Before conducting the analysis regarding the privileges, J. Ungaro concluded that New York law was the appropriate authority. She then examined the fair report privilege and the neutral report privilege under New York law.
J. Ungaro examined the fair report privilege as codified in the New York Civil Rights Law, s. 74 which states: “A civil action cannot be maintained . . . for the publication of a fair and true report of . . . any . . . official proceeding. . . which is a fair and true . . . This section does not apply to a libel.” She notes that the purpose of s. 74 is to “protect reports of proceedings which are ‘made in the public interest’” and that the fair report privilege exists to protect the press by allowing it to function. The press finds and presents information to the public, the information it provides is required for the public to exercise oversight of the government and is relevant to the public welfare.
In order for the fair report privilege to apply, the dossier needed to be treated as an official proceeding. Unlike common law, New York courts have interpreted s. 74 to recognize official proceedings regardless of whether they are open to the public. BuzzFeed, Inc. argued that the definition of official proceeding is any “‘actions taken by a person officially empowered to do so.” The Plaintiffs countered that the definition should be narrowly defined and only applied to “an actual investigation.” J. Ungaro agreed with BuzzFeed, Inc. She highlighted the fact that the dossier was allegedly circulated to President Obama, then-President-Elect Trump, top four senior security officials, and that it was the subject of an FBI investigation as sufficient to show that “‘actions [were] taken by a person officially empowered to do so” and, thus, official proceedings occurred.
However J. Ungaro noted some limitations on the use of the privilege: firstly, the subject matter of the article and that of the proceeding needed to have more than a mere overlap. Here, J. Ungaro stressed that the BuzzFeed News article was an accurate reproduction of the dossier and treated this limitation as a non-issue; and secondly, at the time of publication, a formal proceeding must be underway. She referred to the content in the CNN article and found that this requirement was satisfied.
If an official proceeding is underway, the Court as a matter of law must decide if an ordinary person would understand that the dossier is connected to the proceeding. J. Ungaro found that an ordinary person would have been able to discern that there was a classified briefing or an FBI investigation relating the truth of the claims in the dossier. She did this by stating that while the BuzzFeed News article itself was not enough for an ordinary person to know that an official proceeding was underway, a hyperlink provided in the article was. The BuzzFeed News article included a hyperlink to a CNN article that described the confidential briefings with the previously mentioned parties and asserted that the FBI was investigating the truth of the claims in the dossier. J. Ungaro referred to a Second Circuit case that states, “the hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source and the hyperlink instantaneously permits the reader to verify an electronic article’s claims” (Adelson at 669). Based on this ruling and the fact that the hyperlink was conspicuous, BuzzFeed, Inc. satisfied all the requirements to assert the fair report privilege. However, BuzzFeed, Inc. can only assert the fair report privilege if the facts in the case remain undisputed. BuzzFeed, Inc. would be unable to assert the privilege if discovery revealed that the official actions as reported by CNN did not occur.
J. Ungaro dismissed the Plaintiffs’ argument that even if there was an official proceeding, the report on the official proceeding did not mention them directly, stating that the official proceeding as described indicated that they would be mentioned. Furthermore, “ it would undermine the privilege to require that one who reports on official action tie every specific allegation in the report to a specific instance of official action.”
Additionally, J. Ungaro examined the neutral report privilege. The press can theoretically assert this privilege when it: “(1) publishes an accurate and disinterested report, (2) of serious charges against a public figure, (3) by a responsible, prominent organization, and (4) does not espouse or endorse the organization’s statement.” (Edwards). However, New York law does not recognize neutral reporting privilege and New York Courts have rejected the neutral report privilege. Therefore, BuzzFeed, Inc. could not assert neutral report privilege under New York law. However, it was open to the Court to allow this privilege if it recognized the privilege under the First Amendment but J. Ungaro declined to do so, acknowledging this privilege has been criticized for virtually permitting the press to publish defamatory content if statements are “newsworthy” and come from a “trustworthy” source.
In these circumstances, the Court denied the Plaintiffs’ motion with respect to the fair report privilege and but granted it in respect to neutral report privilege. Thus, BuzzFeed, Inc. may assert the fair report privilege if the facts remain undisputed, however, the neutral report privilege was stricken from BuzzFeed, Inc.’s amended answer.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court recognized hyperlinks as digital footnotes. While the U.S. District Court of Southern Florida is not the first to Court to do so, this decision is substantial for online media platforms and nontraditional news sources. It allows for digital era media to assert the fair report privilege if they hyperlink to an undisputed fact, regardless of whether they post the information directly in the article or blog. The Court did decline to recognize the neutral report privilege, however, the application of this privilege is controversial and considered contrary to the balance established in the fair report privilege.
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