New
York uses different words than Virginia discussed
earlier. New York
calls it, defamation. Further, New York uses a
common law approach rather than the mixed statutory and common law approach we
are familiar from Virginia.
Under New York's
common law, the elements of a defamation claim are:
- a
false statement;
- published
to a third party without privilege or authorization;
- with
fault amounting to at least negligence;
- that
caused special harm or defamation per se.
See Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1
Dept. 1999).
New York courts rely heavily on the "vortex"
notion of a limited-purpose
public figure. See James v. Gannett Co.,
Inc., 40 N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the
category of public figures is that the publicized person has taken an
affirmative step to attract public attention."). "A person becomes a
limited-purpose public figure only if he voluntarily "draw[s] attention to
himself" or uses his position in the controversy "as a fulcrum to
create public discussion." Wolston
v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must,
therefore, "thrust himself into the vortex of [the] public issue [and]
engage the public's attention in an attempt to influence its outcome." See Gertz
v. Robert Welch, Inc., 418 U.S.
323, 352 (1974). In New York,
such figures have included candidates for public office, restaurants (for the
purpose of food reviews), and religious groups. The latter category may make
Phi Kappa Psi's case under New York
law more difficult.
When the plaintiff in a defamation lawsuit is a private
figure and the allegedly defamatory
statements relate to a matter of legitimate public concern, the plaintiff must
prove that the defendant acted
"in a grossly irresponsible manner without due consideration for the
standards of information gathering and dissemination ordinarily followed by
responsible parties." Chapadeau v. Utica Observer-Dispatch,
38 N.Y.S.2d 196, 199 (N.Y. 1975). This standard, which is a higher bar than negligence but lower than actual malice, focuses on an objective
evaluation of the defendant's actions rather than looking at the defendant's
state of mind at the time of publication.
In a New York court, or a court applying New York law, the Columbia review of
the Rolling Stone story might provide the evidence necessary for a jury to
conclude the story was an example of a grossly irresponsible conduct without
due consideration for the standards of information gathering and dissemination
ordinarily followed by responsible parties.
At least one court has
found that the same standard of fault applies to citizen or non-media
defendants where the allegedly defamatory statements relate to a matter of
legitimate public concern. See
Pollnow v.
Poughkeepsie Newspapers, 107 A.D.2d 10 (N.Y.A.D. 2d Dep't 1985), aff'd 67
N.Y.2d 778 (N.Y. 1986) (no
liability for letter to the editor unless writer
was "grossly irresponsible"). I think rape is one of those matters of
legitimate public concern that might tempt a
New York court to apply the higher standard.
In cases brought by private figure plaintiffs involving statements not related
to a matter of legitimate public concern,
New York courts apply a
negligence
standard.
To determine whether statements relate to a matter of
legitimate public concern, New York
courts view the allegedly defamatory statements in context of the writing as a
whole. They ask whether the matter can be "fairly considered as relating
to any matter of political, social, or other concern of the community" and
distinguish this broad category of newsworthy matters from "mere gossip and
prurient interest." Overall, the test is deferential to the reporter's
judgment about whether a matter is of legitimate public concern. See Huggins v. Moore, 94 N.Y.2d 296, 302-03 (N.Y. 1999).
New York
courts recognize a number of privileges and defenses in the context of
defamation actions, including the fair
report privilege, the opinion and
fair comment privileges, substantial truth, and the wire service defense. New York has not
explicitly recognized or rejected the neutral
reportage privilege.
There also is an important provision under section 230 of the Communications
Decency Act that may protect you if a third party – not you or your employee or
someone acting under your direction – posts something on your blog or website
that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content
of Others.
Most of the privileges and defenses to defamation can be
defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it
cannot be defeated by a showing of actual malice.
New York
has codified the fair report
privilege into law. N.Y. Civ. Rights § 74. Under the statute,
speakers cannot be held liable for giving a "fair and true report of any
judicial proceeding, legislative proceeding or other official proceeding."
A report is "fair and true" if it is substantially accurate. The Columbia review and the
Charlottesville Police report show that the Rolling Stone story is far from
accurate. In fact, Columbia
could not substantiate any fact alleged in the article as accurate.
New York
recognizes a privilege that is similar to the wire
service defense but explicitly
extends protection to content originating from other sources in addition to
wire services. Jewell v. NYP Holdings,
Inc., 23 F.Supp.2d 348 (S.D.N.Y. 1998). Under the privilege, courts will
not hold republishers liable for reproducing defamatory content unless the
republisher had or should have had "substantial reasons" to question
the content's accuracy or the original speaker's good faith and reporting
practices. See Karaduman v. Newsday, Inc.,
51 N.Y.2d 531 (N.Y. 1980). Because courts applying these principles have dealt
exclusively with traditional media entities such as newspapers and book publishers
-- both as publishers and republishers -- it is not clear whether this
privilege would apply to online speakers such as bloggers and citizen media
websites.
The status of the neutral
reportage privilege in New York is not settled.
The New York Court of Appeals has neither recognized nor rejected the
privilege, and the lower courts disagree on whether it is part of New York law.
The
statute of limitations for defamation in New
York in one (1) year. See N.Y.
C.P.L.R. 215(3). New York
has adopted the single publication rule. See Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119 (1948). The single publication rule applies to the
Internet in New York,
with the statute of limitations running from the time the defamatory content
first appears online. "Republication" of the allegedly defamatory
content will restart the statute of limitations. A "republication"
occurs upon "a separate aggregate publication from the original, on a
different occasion, which is not merely 'a delayed circulation of the original
edition.'" Firth v. State, 775 N.E.2d 463, 466
(N.Y. 2002). The New York
Court of appeals has indicated that altering the allegedly defamatory content
may trigger republication, and a lower court has held that moving web content
to a different web address triggered republication. See Firth v. State, 306 A.D.2d 666 (N.Y. App. Div. 2003). Regardless of
the New York
single publication rule and Firth, I
would say that time is of the essence in this matter.
With many thanks to the Digital Media Law
Project.
Walt-in-Durham
