Category: Defamation/Media

Chicago News Reporter’s Defamation and Intrusion on Seclusion Suit Against Rival Networked Tossed (IL First District)

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(Photo credit: Google images (visited 10.29.14); Associated Press)

The First District recently weighed in on the nature and scope of defamation law and the false light and intrusion on seclusion civil claims in a case involving a well-known Chicago newscaster.

In Jacobson v. CBS Broadcasting, Inc., 2014 IL App (1st) 132480, the plaintiff – a former NBC television reporter – sued rival network CBS when it aired a video of her at the backyard swimming pool of a person of interest in a high-profile missing persons’ case the plaintiff was covering.

CBS showed a video it secretly took of the plaintiff while she was visiting the house of Craig Stebic – whose wife Lisa went missing in 2007 and who hasn’t resurfaced to this day.  The case garnered daily local and national news coverage for several weeks and was a staple of Nancy Grace’s nightly CNN show.

At the height of the case’s notoriety, plaintiff went to the Stebic house to discuss the case. While there, she was videotaped by a neighbor and CBS reporter. Sensing some salacious television fare (my conjecture), CBS aired the tape and plaintiff was shortly fired by NBC for violating journalistic ethics rules (a lapse in judgment, according to network honchos).

The plaintiff sued Chicago’s CBS station, claiming that the tape and broadcast violated her right to privacy, was defamatory, and led to her firing by NBC. The plaintiff specifically alleged that the videotape placed her in a false light and tried to portray her as “an adulteress and an unethical reporter.”

The trial court granted summary judgment for CBS and plaintiff appealed.

Held: Affirmed.

Reasons:

Plaintiff’s claims failed because she was a public figure, failed to prove actual malice by CBS and lacked a reasonable expectation of privacy at a backyard swimming pool.

Defamation Count: Plaintiff is a ‘Limited Public Figure’

The Court found that plaintiff was a public figure under defamation law who must show “actual malice” to win a defamation suit.  Two types of public figures include (1) a general purpose public figure, and (2) a limited purpose public figure.  When someone “thrust [herself] to the forefront of a particular public controversy, she becomes a limited public figure for matters associated with the given controversy. ¶¶ 29-31.

The Court agreed with the trial judge that plaintiff was a limited purpose public figure since she was enmeshed with a controversial news story that attracted national attention.  Plaintiff clearly injected herself into the teeth of the drama by frequenting the Stebic residence, participating in public vigils and urging the public to come forward with any information about Lisa Stebic’s whereabouts.

The Court also found that plaintiff failed to show “actual malice” by CBS. To defeat summary judgment in a defamation count, the public figure plaintiff must show actual malice: that defendant (1) published (i.e. wrote or said) the defamatory falsehood either with knowledge that it was false, or (2) with a reckless disregard to its truth.  Reckless disregard means that the defendant had a “high degree of awareness” that the statement was probably false or “entertain[ed] serious doubts as to its truth.”  Where the defamatory content is implied (rather than overt), the plaintiff has to show the defendant was subjectively aware of the implied meaning, or at least recklessly disregarded the implied meaning.

The crux of plaintiff’s defamation suit was the video’s juxtaposed images: plaintiff in her swimsuit cross-cut against a shirtless Craig Stebic.  Plaintiff claimed the video implied a sexual relationship between the two.

The court held this wasn’t enough to establish express or implied malice.  There were too many non-defamatory alternatives to plaintiff’s interpretation of the video – especially since plaintiff’s children and other people were in the backyard at the same time.  The Court also declined to imply actual malice by CBS just because it was locked in a fierce ratings battle with NBC at the time of taping. ¶¶ 37, 41-42.

Take-aways: (1) A limited purpose public figure must meet heightened actual malice standard to state a defamation case; (2) intrusion on seclusion tort is difficult to win where the location of an alleged private or secluded site is easily viewed or accessed by third parties.

Illinois Defamation Law: The Quick and Dirty

Defamation is a false, factual statement published to a third party reader or listener.  Illinois recognizes two types of defamation – libel (written) and slander (oral) and the same rules apply to both.

A defamation plaintiff must present sufficient facts establishing (1) a false statement about the plaintiff, (2) that’s not privileged, (3) to a third party; and (4) that caused damages.

A defamatory statement is per se (meaning no proof of specific damages are required)  defamatory when it’s harmful on its face.  Defamatory per se statements are those that (1) impute that a plaintiff committed a crime; (2) impute a plaintiff is unable to perform or lacks integrity in his employment; or (3) statements that plaintiff lacks ability or that otherwise prejudices the plaintiff in her profession.

Only statements that are factual (“he stole $1,000 from me”) – capable of being proven true or false – are actionable; opinions are not (“I think he’s a nut job!”).  Calling someone a crook, a traitor, trashy, a rip-off artist are examples of non-defamatory statements of opinion under prior Illinois cases.

Even per se defamatory statements are not actionable if they are reasonably capable of an innocent construction.  Under the innocent-construction rule, a court considers a statement in context and gives words their natural and ordinary meaning.  If a statement in context is reasonably susceptible to a nondefamatory meaning, it should be given that meaning.

Truth is a defense to defamation.  The challenged statement doesn’t have to be completely true; it’s enough that it’s ‘substantially true’.  A defamatory statement is also not actionable where it’s subject to a privilege.  Two privileges the law recognizes are absolute and qualified privileges.

Qualified privilege applies where as a matter of law and general policy, the defendant has an interest in or duty to make the communication such that it’s privileged.  A classic example of a qualified privilege statement involves a corporation’s statement made while  investigating an employee’s conduct.

Once a qualified privilege attaches, the plaintiff must prove that the defendant intentionally published the material knowing it was false or displaying a reckless disregard as to it truth.  “Reckless disregard” means the speaker made a statement aware that it’s probably false with serious doubts as to its truth.

Source: Coghlan v. Beck (http://www.state.il.us/court/opinions/AppellateCourt/2013/1stDistrict/1120891.pdf

Record Company’s Injunction Attempt Against Rock Band Fails

Victory Records’ attempt to prevent the rock band A Day to Remember (ADTR) from releasing an album in the Fall of 2013 failed because it couldn’t establish the elements for injunctive relief under Illinois law.

In Woodard v. Victory Records, 2013 WL 5517926 (N.D.Ill. 2013), the defendant record company (“Victory” or the “Record Company”) sued to prevent the Florida pop-punk quartet from self releasing its Common Courtesy record.

The Court denied the Victory’s request to block the band’s album release.

To get a temporary restraining order, a plaintiff must show:

  • irreparable harm,
  • an inadequate remedy at law,
  • a likelihood of success on the merits;
  • the harm that will result if the injunction isn’t entered will outweigh harm to the opposing side if the injunction is entered.  *2.   

Victory established a likelihood of success on the merits.  “This is not a high burden.”  All the movant must show is a “better than negligible” chance of winning on the merits.

The crux of the dispute was the parties’ differing interpretations of the word “album” as it was used in the contract. 

The Court found the term ambiguous and each side’s interpretation was plausible.  ( *3).  Because each side’s reading of the contract had facial validity, the Record Company demonstrated a better than negligible chance of prevailing on the merits.

Irreparable harm denotes “likely” injury that is “real” and “immediate”, not “conjectural or hypothetical.”

The movant has to show money damages would not adequately remedy the harm suffered without an injunction.  ( *3).

Here, Victory couldn’t establish likely irreparable harm or an inadequate remedy at law because ADTR was a known quantity. 

ADTR had released several successful albums under the Victory label.  Because of this, Victory could gauge any lost profits resulting from ADTR’s independent album release. 

This ability to extrapolate the album’s likely profits from ADTR’s prior sales meant Victory had an adequate legal remedy (e.g. a suit for money damages) for breach of the recording contract. 

The Court also rejected Victory’s reputational harm argument – that if ADTR is allowed to self-release an album and the album is flawed and doesn’t sell, Victory’s reputation will suffer.  The Court held that since ADTR was perennially successful and had a wide fan base, it wasn’t likely that ADTR would intentionally (or not) release an inferior music product. (*4-5).

The balance of harms element also favored ADTR.  The Court applied a “sliding scale” analysis: the more likely a movant is to win, the less the balance of harms must weigh in the movant’s favor (and vice versa). (*2).

 Here, the Record Company had a lost profits breach of contract remedy if the band breached the recording contract.  In contrast, if ADTR was prevented from releasing its album with no end in sight to the underlying litigation, the band’s fan support could likely erode in an ultra-competitive industry (the music business) resulting in definite financial harm to the band.  (*5)

Take-aways:

Victory Records illustrates that injunctive relief is difficult to get where the moving party has a clear legal remedy.

 The Court found that past album sales provided a basis for lost profits and a sufficient legal remedy if the band breached the recording contract.