from the because-of-course dept
This was pretty much a foregone conclusion -- but a few different people (including Trump's ex-fixer Michael Cohen) have sued Buzzfeed for publishing the so-called "Steele Dossier," which were a collection of opposition style research put together by Christopher Steele about Donald Trump and his associated. While Cohen dropped his suit once he realized that discovery was about to create a huge, huge mess, another such lawsuit continued -- the one filed by Aleksej Gubarev and some of his companies, complaining about references to himself and his companies in the dossier.
We noted that this lawsuit was "doomed to fail" and that's exactly what has happened. We expected that it would likely fail because Buzzfeed is, at the very least, the wrong party to sue. They were simply releasing the newsworthy file to discuss what was being passed around Washington DC circles. But they did not produce or write the document.
Instead, the court went with another option: the fair report privilege -- which is an important protection for journalism found in many states. It basically says that the press is not liable for publishing defamatory content, so long as you are relying on public documents that were part of an "official action" of the government. In NY, where Buzzfeed is based, the court found that the fair report privilege is fairly broad, but the question was whether or not the collection of reports that made up the dossier were used in an "official action" from the government. Buzzfeed argued that since President Trump was briefed on the document, then it clearly was a part of an official government action. Gubarev argued that just the part about him needed to be part of an official action.
The court determines that Buzzfeed's argument wins the day:
As discovery has fleshed out the facts, the issue of whether there was official action with respect to the specific allegations about Plaintiffs has taken on more importance than previously. Distilled to its essence, Defendants’ motion turns on the following question: may Defendants claim the privilege’s protection when the record reveals that certain parts of the Dossier were subject to official action but does not reveal whether the specific allegations about Plaintiffs were subject to official action? For the reasons discussed below, the answer is: yes.
The Court begins again with the text Section 74. The second paragraph of that statute exempts from the privilege “anything said or done at the time and place of such a proceeding which was not a part thereof.” N.Y. Civ. Rights Law § 74. Based on this provision, Plaintiffs take the position that Defendants must show that the particular statements about them were subject to official proceedings. But Defendants respond that New York law does not require that level of granularity; they have satisfied their burden by showing that the Dossier was subject to official action. Alternatively, they argue that they have satisfied their burden because they have shown that parts of Report 166 were subject to official action (namely, those portions concerning Carter Page, and those concerning Russian connections with the Trump campaign) and that is sufficient to protect their publication of the whole Report.
How close the connection between the challenged Report and the official proceeding must be “has not been clearly defined.” Fine, 11 F. Supp. at 216–17. But as discussed previously, a report is to be given a degree of liberality. See D.E. 171, p. 18 (“[I]t 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.”) (citing Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 68 (1979) (holding that reports of official proceedings “must be accorded some degree of liberality” and “the language used [in the report] should not be dissected and analyzed with a lexicographer’s precision.”); Alf v. Buffalo News, Inc., 21 N.Y.3d 988, 990, 995 N.E.2d 168, 169 (2013) (holding that to claim the privilege a report need not be more than “substantially accurate.”)). Additionally, New York law does not require line-by-line review of the report. See id. And lastly, Section 74 has been given “broad construction” such that “reports that bear a more attenuated relationship to a proceeding have been deemed sufficiently connected.”
Interestingly, the fact that Buzzfeed just threw the entire document up online without additional reporting -- something it was widely criticized for -- appears to have helped it in this case. In rejecting comparisons to other cases, the court highlighted the lack of additional commentary:
These cases are fundamentally different from the present case. In those cases, the allegedly defamatory statements summarized, restated, and editorialized upon official proceedings. It was right in those cases to parse the statements line-by-line because the privilege obligates the press to faithfully recount official proceedings. See Freidman, 884 F.3d at 95. But here, BuzzFeed did not editorialize or restate the Dossier; it simply published it. See D.E. 171, p. 14. To go line-by-line to determine if official action existed with respect to each statement in Report 166 would not impose on BuzzFeed a duty to faithfully recount official proceedings, but instead, would impose on BuzzFeed a duty to investigate extensively the allegations of the Dossier and to determine whether the government was investigating each separate allegation. Defamation law does not impose that requirement on the press.
Separately, the court agrees with Buzzfeed that it is protected because the published article was "fair and true." That's not saying that the contents of the Steele reports are necessarily "fair" or "true," but rather that it was fair and true that these Steele reports were being passed around DC among politicians and journalists.
Amusingly, one of Gubarev's arguments was that Buzzfeed should have had the link to the dossier files "underlined" to show they were a hyperlink. The court, again, is not impressed:
Plaintiffs’ second argument is that BuzzFeed was required to underline the hyperlink; it was not sufficient to merely put it in blue. Plaintiffs cite no cases standing for the proposition that a hyperlink must conform to such strict formatting requirements to be conspicuous. Cases (outside the defamation context) have recognized that hyperlinks are typically blue and underlined, but they uniformly take a totality-of-the-circumstances approach when determining whether a hyperlink is conspicuous.
And, with that Buzzfeed's Motion for Summary Judgment is successful and the case gets tossed. It is entirely possible that Gubarev will appeal, but I can't see this case ever succeeding.
Filed Under: aleksej gubarev, defamation, fair reporting, fair reporting privilege, steele dossier
Companies: buzzfeed
