In Pippen v. NBCUniversal Media, the 7th Circuit upheld the District Court’s dismissal of former hoops diety Scottie Pippen’s false light defamation complaint. Pippen sued NBC after several internet media outlets falsely reported that he filed for bankruptcy protection. The Northern District dismissed his claims on the basis that he failed to prove that the online media accounts were defamatory on their face and also couldn’t show actual malice by the defendant. The Seventh Circuit affirmed.
Reasoning: The two species of defamation (basically, a false statement published to a third party that is harmful) are: (1) defamation per quod – which requires a plaintiff to show that false statements caused him financial harm; and (2) defamation per se – statements so harmful on their face that damages to the plaintiff recipient are presumed (no proof of money injury is required). Per se defamation includes false statements that plaintiff committed a criminal act, has a loathsome disease, lacks competence or integrity in his profession or false statements which impede a plaintiff in the pursuit of his trade or profession. Bryson v. News America Publications, Inc., 174 Ill.2d 77 (1996).
Rejecting Pippen’s per se defamation claim, the Seventh Circuit held that a false media account of a personal bankruptcy was not equivalent to an outright false accusation that Pippen lacked ability in his trade or was somehow immoral. NBCUniversal, p. 3. Pippen’s post-NBA career includes public speaking appearances, product endorsements and working as a television basketball analyst. A media report that he filed bankruptcy does not impugn his ability to carry out these jobs. Id., p. 4.
The Court also found that Pippen’s defamation per quod claim failed. While Pippen’s allegations of lost product endorsements and speaking engagement opportunities did satisfy the special damages pleading requirement for per quod defamation, his claim was defeated because he couldn’t show actual malice.
Since Pippen is a public figure, he must show (i) defendant’s knowledge of falsity; or (ii) its reckless disregard for the truth of the published statement. Id., p. 5; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The Court looked to U.S. Supreme Court precedent in rejecting Pippen’s argument that a failure to investigate whether he truly filed bankruptcy was enough to show a reckless disregard for the truth. NBCUniversal, p. 6; Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). The Court also discarded Pippen’s claim that the media outlets’ failure to retract the bankruptcy report after Pippen e-mailed them that he didn’t file bankruptcy demonstrated actual malice: a determination made at the time of publication.
Finally, the Court reaffirmed Illinois’ single publication rule, codified in 740 ILCS 165/1 (the Uniform Single Publication Act), ruling that defamation is “complete” at the time of the first publication and that subsequent repostings or publications do not trigger fresh libel (written defamation) claims. NBCUniversal, p. 6. Applying the single-publication rule to digital publications, the Court looked to other States’ precedents and adopted the policy argument that the rule should apply to online publishers. Otherwise, the Court wrote, it would give rise to a never-ending multiplicity of suits against online media sources exposing them to “potentially limitless liability.” Id., p. 8. On this point, the court shot down Pippen’s assertion that the single-publication rule shouldn’t apply to online media since they can easily retract erroneous information (with a click of a button).
On the republication issue (defendant republishes a defamatory story) the Court did imply that if the defendant took an affirmative, independent action that republished a defamatory story, this could give rise to a defamation claim. However, here, the Seventh Circuit (sitting in diversity) predicted that Illinois’ highest court wouldn’t deem the “passive maintenance of a web site” a republication for libel purposes. Id., p. 9.
Conclusion: Apparently, one of the prices of fame (I wouldn’t know !) is that it’s hard for a public figure to state a defamation case against a printed or digital media source. The case illustrates how high a proof burden the actual malice standard is for a celebrity/public figure plaintiff. It surprises me that if a defamation plaintiff proves to a defendant that a defendant’s statement is false and the defendant fails to retract it (i.e. keeps it on the website), this will not show knowledge of falsity. It seems to beg the question as to what conduct of a defendant does satisfy the knowledge of falsity or reckless disregard actual malice standard. Lastly, the Court’s single-publication holding should be welcome news to Internet media sources since it protects them from potentially non-stop defamation claims with each day that a false story persists giving rise to a fresh limitations period.
Link to opinion: