Tag: actual malice

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.

7th Circuit Bounces Chicago Bull’s Legend’s Defamation Suit

Freepress_art_160_20080307145114In 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:

 http://www.isba.org/cases/7thcircuit/2013/08/21/pippenvnbcuniversalmediallc