New York defamation law survey.

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:

1. a false statement;
2. published to a third party without privilege or authorization;
3. with fault amounting to at least negligence;
4. 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. 

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