Online Journalist\'s Legal Protections Increased Substantially.

Submitted by Hermit on Wed, 01/02/2002 - 08:14

Tom Regan over at reports that online
journalist\'s legal protections have increased
: \"in a court decision
that was largely overlooked by the mainstream media, a New York Supreme
Court judge [Paula Omansky] has issued a ruling in a libel case
that extends the same speech protections to online journalists that their
print, radio, and TV colleagues have enjoyed since the famous Sullivan
v. New York Times decision of 1964.\"
The defendant--editor, publisher, and journalist for
reported that a president of a Mexican bank (the bank, Banamex, was bought
by Citigroup during the trial) was connected with drug traffickers. 
After Banamex had lost (repeatedly) their claim of libel in Mexican courts
they moved their complaint to a New York, USA court.  Tom Regan reports
that the judge\'s decision is the first time that the protections provided
by the Sullivan
v. New York Times
decision have been extended to online journalists., who helped the defendant with an Amicus
Curiae Brief
, has a copy of the court\'s
.  See also the EFF
press release
, and the EFF
about the case, as well as an extensive list of articles
about the case
compiled at
Banamex may appeal the decision.

-Hermit ;-)

Some of the key parts of the New York Supreme Court\'s
\'Decision and order\' pertaining to online journalists are under the \"Pleading
Requirements for Defamation\" sections: \"b. Actionable Speech\", ... \"c.
Media Defendants\", ... and \"d. Public and Private Figures, Malice and Gross
Those sections are reproduced here from the\'s copy of the New York Supreme Court\'s decision

The section below represents approximately the last 25% of Judge Omansky\'s
written decision (not including the endnotes) the entirety of which should
be read for a full understanding of the case.  This reproduction is
made with the understanding that this is an uncopyrighted, public legal
document. (disclaimer: I am not a lawyer).

b. Actionable Speech

An expression of an opinion is not actionable
and \"receives the Federal constitutional protection accorded to the expression
of ideas, no matter how vituperative or unreasonable\" (Steinhilber v
Alphonse, 68 NY2d 283, 289 [1986]). Moreover, a pure opinion is not
actionable even if it is false or libelous (id. at 285).

The term \"pure opinion\" is defined as a
statement of belief which is accompanied by a recitation of facts upon
which it is based (Steinhilber v Alphonse, supra, 68 NY2d,
at 289). However, if the statement of opinion implies that it is based
upon facts which justify the opinion but which are unknown to those reading
or hearing it, the statement is a mixed opinion and is actionable (ibid.).
The determination of whether a given statement is a recitation of facts
or a pure opinion is not subject to a rigid set of criteria. However, New
York courts have applied four general factors in determining whether speech
is protected opinion or actionable misrepresentation of facts:

(1) an assessment of whether the specific language in issue
has a precise meaning which is readily understood or whether it is indefinite
and ambiguous; (2) a determination of whether the statement is capable
of being objectively characterized as true or false; (3) an examination
of the full context of the communication in which the statement appears;
and (4) a consideration of the broader social context or setting surrounding
the communication including the existence of any applicable customs or
conventions which might \"signal to readers or listeners that what is being
read or heard is likely to be opinion, not fact\"

(Steinhilber v Alphonse, supra, 68 NY2d, at 292, quoting
v Evans, 750 F2d 970, 983 [DC Cir 1984], cert denied 471 US
1127 [1985]; cf., 600 West 115th Street Corp. v Von Gutfeld,
80 NY2d 130, 139-134, rearg denied 81 NY2d 759 [1992], cert denied
508 US 910 [1993]).

The Narco defendants argue that the alleged
defamation is protected opinion because the public pronouncements, which
were also broadcast on the radio, as well as the articles posted on the
website clearly state that the Narco defendants\' statements are based on
eyewitness accounts and reports\' investigations. Plaintiffs argue that
the statements are actionable speech because the recitation of supporting
evidence is based on a gross distortion or misrepresentation of the underlying

A review of the pleadings and the submitted
documents indicate that defendant\'s message was intended to be an assertion
of fact. The alleged statements are precise and definite accusations against
plaintiff. The context of the speech, the broadcast and the electronic
transmission indicate to the listener or the reader that the Narco defendants
were reporting on alleged past events (cf., 600 West 115th Street
Corp. v Von Gutfeld, supra, 80 NY2d, at 139-140 [statements
of false facts are actionable]).

c. Media Defendants

This court finds that Narco News
is a media defendant and is entitled to heightened protection under the
First Amendment (New York Times Co. v Sullivan, supra, 376
US, at 270-280).

The Internet is similar to a televison and
radio broadcast in the sense that the electronic missive is able to reach
a large and diverse audience almost instantaneously (Matherson v Marchello,
100 AD2d 233, 293 [2d Dept 1984]). However, the character of a particular
website depends on the format and program design (see, Lunney
v Prodigy Servs. Co., 94 NY2d 242, 249 [1999], cert denied 529
US 1098 [2000]). A careful review of defendants\' submissions on Narco
News\'s website indicates that the Narco defendants\' format is similar
to a regularly published public news magazine or a newspaper except for
the fact that the periodical is published \"on line\" or electronically,
instead of being printed on paper. The fact that the Narco News
website can accept readers\' comments, or letters to the editor, via a separate
e-mail address only strengthens the need for First Amendment protections
for the medium Since principles of defamation law may be applied to the
Internet (Lunney v Prodigy Servs. Co., supra, 94 NY2d, at
248), this court determines that Narco News, its website, and the
writers who post information, are entitled to all the First Amendment protections
accorded a newspaper/magazine or journalist in defamation suits (Huggins
v More, 94 NY2d 296, 301 [1999]). Furthermore, the nature of the articles
printed on the website and Mr. Giordano\'s statements at Columbia University
constitute matters of public concern because the information disseminated
relates to the drug trade and its affect on people living in this hemisphere
(id. at 302).

d. Public and Private Figures, Malice and Gross Irresponsibility

There are also different standards of proof,
and, in turn, pleading requirements, for complainants who are public figures
and those that are private individuals. Public figures may only recover
for defamation when they can both prove that the statement was made with
actual malice, that is with knowledge that it was false or with reckless
disregard for the truth (Prozeralik v Capital Cities Communications,
Inc., supra, 82 NY2d, at 475, citing New York Times Co. v
Sullivan, supra 376 US, at 285-286 [remaining citation omitted];
Esposito-Hilder v SFX Broadcasting, Inc., 171 Misc2d 286, 290 [Sup
Ct, Albany County 1996], affd 236 AD2D 186 [3d Dept 1997]).

The category of public figure includes individuals
who must be deemed such for all purposes as well as those who might invite
publicity only with respect to a narrow area of interest (James v Gannett
Co., Inc., 40 NY2d 415, 422-423, rearg denied 40 NY2d 990 [1997]).
In certain instances, corporations, which are large and possess great influence,
are considered public figures or deemed so because of actions taken by
them which invite public comment (Ithaca College v Yale Daily News Pub.
Co. Inc., 105 Misc2d 793, 796 [Sup Ct, Tompkins County, 1980], affd
85 AD2d 817 [3d Dept 1981], citing Reliance Ins. Co. v Barron\'s,
442 F Supp 1341 [SD NY 1977]). A bank is not a public figure solely by
virtue of the fact that it is in business or that it is incorporated or
that it is subject to routine or usual regulation of that business (Bank
of Oregon v Independent News, Inc., 65 Or App 29, 35 [Ct App, OR 1983],
296 OR 434, rehearing denied 298 OR 819 [Sup Ct, OR],
cert denied
474 US 826 [1985]). A bank which thrusts itself into the public sphere
solely to defend itself against alleged defamatory statements, does not
become a public figure, waiving the protections afforded private individuals
in defamation actions (id., at 35, citing Hutchinson v Proxmire,
443 US 111, 135 [1979] [remaining citation omitted]). The Narco defendants
have not asserted facts which show that plaintiff took steps to influence
public opinion prior to the alleged defamation; therefore, this court is
unable to deem plaintiff a public figure (cf., Howard v Buffalo
Evening News Co., 89 AD2d 793 [4th Dept 1982]).

However, despite the Narco defendants\' omission,
plaintiff is still not entitled to enjoy the lower standard of proof accorded
private complainants because even private individuals suing media defendants
over statements involving matters of public concern, must prove constitutional
malice to recover presumed or punitive damages (Huggins v More,
94 NY2d, at 301, citing Gertz v Robert Welch, Inc., 418 US 323,
347 [1974]).

Plaintiff may not rely on allegations of falsity
alone to raise an inference of malice but must plead facts which, if proven
true, would show that the Narco defendants intended to injure plaintiff
(Prozeralik v Capital Cities Communications, Inc., supra,
82 NY2d, at 302, citing Bose Corp. v Consumers Union of U.S., 466
US 485, 511, n 30, rehearing denied 467 US 1267 [1984]). Plaintiff
does not specifically explain how the Narco defendants\' statements actually
disrupted plaintiff\'s business (Jurlique Inc. v Austral Biolab Pty.
Ltd., 187 AD2d 637, 638 [2d Dept 1992]). Nothing in the supporting
papers indicates that the Narco defendants had any monetary interest in
the banking industry or that they wished to harm plaintiff\'s business dealings.

In addition, plaintiff has also failed to
state sufficient facts which indicate that the Narco defendants \"\'acted
in a grossly irresponsible manner without due consideration for the standards
of information gathering and dissemination ordinarily followed by responsible
parties\'\" (Huggins v More, supra, 94 NY2d, at 301 quoting
v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). Plaintiff did
not plead facts which, if proven true, would show that the Narco defendants
did not utilize those methods of verification which are reasonably calculated
to produce accurate copy (Lee v City of Rochester, 254 AD2d 790,
792 [4th Dept 1998]. Here, plaintiff does not indicate that the Narco defendants
used sources which they knew, or should have known, were unreliable, or
that the Narco defendants were aware of other reliable sources to verify
the information alleged in Por Esto! (Robare v Plattsburgh Co.
Div of Ottaway Newspapers, Inc., 257 AD2d 892, 893 [3d Dept 199], citing
v Utica Observer-Dispatch, supra, 38 NY2d, at 199). The Narco
defendants were entitled to rely on the accuracy of articles written by
reporters from Por Esto! (Karaduman v Newsday, Inc., 51 NY2d
531, 550 [1980], rearg denied 52 NY2d 899 [1981]) and are under
no legal obligation to interview, or re-interview, every possible witness
to an incident (Lee v City of Rochester, supra, 252 AD2d,
at 793, citing Mitchell v Herald Co., 137 AD2d 213, 217 [4th Dept],
appeal dismissed 72 NY2d 952 [1988]). Moreover, the question of whether
the Narco defendants are guilty of unbalanced reporting is a matter of
editorial judgment and is not actionable (Gotbetter v Dow Jones &
Co., Inc., 259 AD2d 335 [1st Dept 1999]). Plaintiff has not stated
any fact which, if proven true, would show that the Narco defendants were
aware of circumstances which would have lead them to question the veracity
of the information provided (Robare v Plattsburgh Co. Div of Ottaway
Newspapers, Inc., supra, 257 AD2d, at 894).

Therefore, those branches of the Narco defendants\'
motions, in motion sequence nos. 002 and 003, to dismiss the first and
second causes of action for libel and slander on the ground of insufficiency,
are granted.

Remaining Claims

Plaintiff has also failed to state sufficient
facts to indicate that the Narco defendants tortiously interfered with
future contract relationships (WFB Telecommunications v NYNEX, 188
AD2d 257, 258 [1st Dept 1992], lv denied 81 NY2d 709 [1993]; Jurlique
Inc. v Austral Biolab Pty. Ltd., supra, 187 AD2d, at 638). In
particular, plaintiff has failed to allege any specific relationships with
which the Narco defendants interfered (Business Networks of New York
v Complete Network Solutions Inc., 265 AD2d 194, 195 [1st Dept 1999]).
Therefore, those branches of motions sequence nos. 002 and 003 which seek
to dismiss the third cause of action for interference with prospective
economic advantage, are granted.

This court need not reach any of the litigants\'
remaining arguments concerning the sufficiency of the pleadings or the
objections to this action based on the ground of forum non conveniens.
Since this court has dismissed all the causes of action, there is no need
for further discovery or for a hearing on jurisdictional matters.

Accordingly, it is

ORDERED that the motion of Electronic Frontier
Foundation in motion sequence no. 004, for leave to appear as amicus curiae
is granted and the individual\'s application, motion sequence no. 005, is
denied for the reasons stated herein; and it is further

ORDERED that the motion of defendant Menéndez-Rodriguez,
in motion sequence no. 001 to dismiss, with prejudice, all claims against
him for lack of personal jurisdiction is granted; and these portions of
the complaint are severed and dismissed; and it is further

ORDERED that the motions of defendant Narco,
motion sequence no.002, and defendant Al Giordano, motion sequence no.
003, to dismiss, with prejudice, the complaint against them on the ground
of insufficiency, is granted; and the remaining portions of the complaint
are dismissed; and it is further

ORDERED that the clerk is directed to enter
judgment accordingly.
DATED: December __, 2001


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