340 F. Supp. 3d 1304
S.D. Fla.2018Background
- Plaintiffs (Aleksej Gubarev, XBT Holdings, and Webzilla) sued BuzzFeed and Ben Smith for defamation after BuzzFeed published on January 10, 2017 a news article that reproduced a 17‑page intelligence "Dossier" alleging (among many things) that Plaintiffs participated in cyber‑operations on behalf of Russia.
- The BuzzFeed article reproduced the Dossier in full, included conspicuous disclaimers that the Dossier contained "specific, unverified, and potentially unverifiable allegations," and hyperlinked to a CNN piece reporting that U.S. intelligence officials had briefed the President and President‑elect and that the FBI was investigating the Dossier.
- Portions of the Dossier (including earlier reports about Carter Page and allegations of Trump–Russia contacts) were undisputedly the subject of official action (intelligence briefings, FBI source‑validation, and DOJ use of the Dossier in FISA applications); whether the specific allegations about Plaintiffs were the subject of official action was not shown with the same granularity.
- Plaintiffs argued BuzzFeed published without reasonable care and falsely implied that government officials had taken the specific allegations about Plaintiffs seriously; they urged line‑by‑line scrutiny and claimed the fair report privilege did not apply.
- Defendants invoked New York’s fair report privilege (N.Y. Civ. Rights Law § 74) and argued (1) the Article reported on an official proceeding, (2) BuzzFeed reproduced the Dossier fairly and accurately, and (3) the conspicuous hyperlink to CNN made clear government involvement.
- The Court granted summary judgment for Defendants, holding the publication was protected by the fair report privilege as a matter of law and declining to reach other defamation elements (e.g., falsity or actual malice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether publication is protected by NY fair report privilege | BuzzFeed must show official action as to the specific allegations about Plaintiffs; record does not show that | Privilege applies because the Dossier (and parts of Report 166 tied to official action) were reported and hyperlinked to CNN coverage of government briefings and investigations | Privilege applies; reporting on the Dossier as reproduced is protected |
| Whether privilege requires line‑by‑line proof that each alleged statement was subject to official action | Line‑by‑line scrutiny required to avoid implying Govt took specific allegations seriously | New York law allows liberal construction; reporting on a document subject to official action suffices without granular proof for each line | No line‑by‑line requirement; coverage of the Dossier suffices to extend privilege to Report 166 |
| Whether BuzzFeed’s republication was "fair and true" (scope and accuracy) | Reproducing the Dossier misleads readers into thinking all allegations (including Plaintiffs’) were treated as official findings | BuzzFeed reproduced the Dossier without editorializing and included disclaimers and a conspicuous hyperlink to CNN; reproduction was substantially accurate | Reproduction was fair and true as a matter of law |
| Whether the hyperlink to CNN was sufficiently conspicuous to inform average reader of official action | Hyperlink was not conspicuous enough and CNN did not confirm official action regarding Plaintiffs | Hyperlink was prominent in body text, blue and consistent with BuzzFeed's linking style; CNN corroborated that intelligence briefings and FBI review occurred | Hyperlink was conspicuous and supported the privilege |
Key Cases Cited
- Reuber v. Food Chem. News, Inc., 925 F.2d 703 (4th Cir. 1991) (press need not undertake extensive investigation to report on governmental activity)
- Holy Spirit Ass'n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63 (N.Y. 1979) (reports of official proceedings must be construed liberally; avoid lexicographer’s precision)
- Karedes v. Ackerley Grp., Inc., 423 F.3d 107 (2d Cir. 2005) (privilege does not protect reporting that, in context, suggests more serious conduct than official record)
- Adelson v. Harris, 402 P.3d 665 (Nev. 2017) (a conspicuous hyperlink to source material about an official proceeding can render a report privileged)
- Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. City of New York, 101 A.D.2d 175 (N.Y. App. Div. 1984) (official investigation falls within § 74’s definition of official proceeding)
- Alf v. Buffalo News, Inc., 21 N.Y.3d 988 (N.Y. 2013) (a report need only be substantially accurate to claim the privilege)
- McNally v. Yarnall, 764 F. Supp. 853 (S.D.N.Y. 1991) (background material related to proceedings can be covered by privilege)
- Fishof v. Abady, 280 A.D.2d 417 (N.Y. App. Div. 2001) (privilege extends to release of background material regarding a proceeding)
- Greenberg v. Spitzer, 155 A.D.3d 27 (N.Y. App. Div. 2017) (where defendant added statements beyond an official proceeding, those added statements are not privileged)