Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

In October 2008, we reported that the Florida Supreme Court rejected the false light invasion of privacy tort as a viable claim for relief under Florida law.  On December 23, 2008, the Missouri Court of Appeals went the opposite direction and held that Missouri does recognize false light invasion of privacy as an actionable tort. 

In Meyerkord v. Zipatoni Co., the Missouri Court of Appeals vacated and remanded the trial court's dismissal of a plaintiff's claim alleging that the defendant company, Zipatoni, had cast the plaintiff in a false light by failing to remove the plaintiff as the registrant of a certain website.  The plaintiff was a former employee of Zipatoni (a marketing firm) and was listed as the registrant for the company's account with Register.com.  Three years after the plaintiff left the company, Zipatoni registered a certain marketing website through Register.com---the Register.com account listed the plaintiff as the website's registrant even though the plaintiff had nothing to do with the creation, registration, or marketing for the website.  The website (www.alliwantforxmasisapsp.com) was apparently used during a "viral marketing campaign" related to Sony's Play Station Portable.  The website and those associated with it, including the plaintiff, became the subject of "concern, suspicion, and accusations" in the online community.

The plaintiff filed a complaint against Zipatoni alleging false light invasion of privacy.  The complaint claimed that the content of the website was "'publicly attributed'" to the plaintiff and that "his 'privacy had been invaded, his reputation and standing in the community had been injured, and he has suffered shame, embarrassment, humiliation, harassment, and mental anguish."  The trial court dismissed the complaint because no Missouri court had previously recognized the false light invasion of privacy tort.

In reaching its conclusion to vacate and remand the case, the Court of Appeals reasoned that Missouri had long recognized a cause of action for "invasion of privacy," the umbrella term for four different torts:  intrusion on seclusion, misappropriation of likeness, public disclosure of private facts, and false light.  See, e.g., Restatement (Second) of Torts, Section 652(A)-(E).  The Court of Appeals also acknowledged that Missouri courts had never explicitly recognized a cause of action for false light.  However, the Court of Appeals also reasoned that the Missouri Supreme Court left open the possibility that false light could be recognized in the future.  In Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo. 1986) (en banc), a decision that declined to recognize false light based on the facts presented, the Missouri Supreme Court wrote, "[i]t may be possible that in the future Missouri courts will be presented with an appropriate case justifying our recognition of the tort of 'false light invasion of privacy.'  The classic case is when one publicly attributes to the plaintiff some opinion or utterance, whether harmful or not, that is false, such as claiming that the plaintiff wrote a poem, article or book which plaintiff did not in fact write." 

In Meyerkord, the Court of Appeals noted that a majority of jurisdictions that have confronted the issue of whether or not to recognize false light as a separate actionable tort have chosen affirmatively to recognize the tort (the court cited 27 jurisdictions), whereas a minority of jurisdictions have refused to recognize false light (the court cited 8 jurisdictions).  According to the Court of Appeals, the jurisdictions that have rejected false light have done so primarily due to three concerns:  (1) the protection provided by false light duplicates or overlaps interests already protected by defamation, (2) recognizing false light would increases tension with the First Amendment to the extent false light allows recovery beyond that allowed for defamation, and (3) recognizing false light would require courts to consider two claims for nearly identical relief.  The Meyerkord decision addressed each of these concerns as follows:

• False light is "sufficiently distinguishable" from defamation.  Under defamation law, "the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world."  On the other hand, the interest protected by false light "is the subjective one of injury to the person's right to be let alone."  Additionally, the marketplace of ideas operates to alleviate defamation injuries, while the marketplace intensifies the injuries that flow from false light.
• The First Amendment concerns attendant to recognition of false light are lessened by adopting a heightened standard of fault, such as actual malice---knowledge of falsity or reckless disregard for the truth---or recklessness.  
• The heightened actual malice standard also alleviates concerns related to judicial economy.  Moreover, the requirement that a plaintiff must prove the complained of statement is "highly offensive to a reasonable person" decreases the possibility of excessive litigation over false light claims.

The Court of Appeals wrote:

As noted earlier, the Missouri Supreme Court has considered the issue of whether Missouri courts should adopt the tort of false light invasion of privacy, but the Supreme Court concluded it had not yet been confronted with a factually suitable case. We now find that the facts of the present case properly present the issue of false light invasion of privacy and we hold that a person who places another before the public in a false light may be liable in Missouri for the resulting damages. In recognizing this cause of action, we note that as a result of the accessibility of the internet, the barriers to generating publicity are quickly and inexpensively surmounted. . . . Moreover, the ethical standards regarding the acceptability of certain discourse have been diminished. Thus, as the ability to do harm grows, we believe so must the law's ability to protect the innocent.

In so ruling, the Court of Appeals adopted the Restatement (Second) of Tort's formulation of false light invasion of privacy, which requires a plaintiff to show: (1) the false light in which the plaintiff was placed would be highly offensive to a reasonable person, and (2) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.  The Court of Appeals expressly adopted the actual malice standard for all false light claims, whether they involve public officials, private individuals, public matters, or private matters.

Turning to the facts of the case, the Court of Appeals determined that the plaintiff had adequately alleged that the viral marketing website was publicly attributed to him and that the misrepresentation was highly offensive to a reasonable person.  However, the plaintiff had failed to adequately allege the actual malice standard of fault, so the trial court had not erred in dismissing the complaint.  The Court of Appeals vacated the trial court's decision and remanded the case to allow the plaintiff an opportunity to amend his complaint and plead actual malice.

It is important to recognize that the Meyerkord decision was issed by the Court of Appeals, which is an intermediate state appellate court.  The Missouri Supreme Court has not yet had an opportunity to rule definitively that Missouri courts recognize false light invasion of privacy as a separate actionable tort.  The juxtaposition of the Meyerkord case and the Rapp case out of Florida also underscores that the status of invasion of privacy torts, and particularly the status of the false light invasion of privacy tort, remains fluid across U.S. jurisdictions.  We will keep you apprised as other states address this issue.

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On his first full day in office, President Barack Obama issued two memoranda to the heads of executive departments and agencies plainly declaring that government departments and agencies must be open for public scrutiny.

In the Freedom of Information Act (“FOIA”) memorandum, President Obama directs executive departments and agencies to administer FOIA with a presumption in favor of openness. 

In the face of doubt, openness prevails.  The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.  Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.  In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

The FOIA memorandum further directs agencies to adopt policies in favor of open disclosure and to apply those policies to all decisions involving FOIA.  Agencies should not merely react to FOIA requests but, rather, should proactively make information available to the public, including through use of modern technologies.  Furthermore, "disclosure should be timely."

The FOIA memorandum also directs the U.S. Attorney General to issue new guidelines governing FOIA to heads of executive departments and agencies and directs the Director of the Office of Management and Budget (“OMB”) “to update guidance to agencies to increase and improve dissemination to the public, including through the use of new technologies. . . .”  Both the Attorney General’s and OMB’s guidelines are to be published in the Federal Register.

The full text of the FOIA memorandum is linked here.

In addition to the FOIA memorandum, President Obama also issued a memorandum entitled, “Transparency and Open Government.”  The transparency memorandum broadly declares the following:

My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, strengthen our democracy and promote efficiency and effectiveness in Government.

The transparency memorandum goes on to set out three principles concerning the manner in which government "should" operate, and it states the actions executive departments and agencies should take to further those principles.

1. "Government should be transparent."  The administration will "take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use."  The memorandum states that executive departments and agencies should use new technologies to make information available to the public online and should also ask for public feedback to target the information that is "of the greatest use to the public."
2. "Government should be participatory."  Because "public engagement enhances the Government's effectiveness and improves the quality of its decisions," executive departments and agencies should offer (and ask for public feedback on how to offer) the public more opportunities to participate in policy decisions.
3. "Government should be collaborative."  The memorandum states that collaboration engages the public in government.  To that end, executive departments and agencies should "use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.  Executive departments and agencies should also ask for public feedback on how to better collaborate and how to identify new opportunities for collaboration.

The transparency memorandum directs the Chief Technology Officer, along with the Director of the OMB, within 120 days to coordinate the development of an "Open Government Directive" that "instructs executive departments and agencies to take specific actions implementing the principles" laid out in the transparency memorandum.

The full text of the transparency memorandum is linked here.

It is important to recognize that the principles and guidelines set forth in the FOIA and transparency memoranda are not, in themselves, laws that create new rights of access.  Indeed, the memoranda are careful to point this out.  However, the memoranda set the tone for the executive branch at the outset of the new Obama Administration.  If followed, the memoranda suggest a pointed contrast to prior administrations.  For example, some have accused the Bush administration of secrecy and of frustrating FOIA by denying or dragging out requests.  Time will tell if FOIA access and openness will improve in the Obama Administration, but the memoranda appear to be a promising first step.  A number of prominent newspapers have penned editorials applauding the memoranda, including the New York Times, Los Angeles Times, Seattle Times, and Baltimore Sun.

The memoranda direct specific actions to be taken by certain executive branch officials (e.g., the Director of OMB, the Attorney General, and the Chief Technology Officer), so we should see new agency guidelines concerning FOIA and an Open Government Directive in the future. 

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January 2009 marks the start of a new year, with a new President in the White House and new Governors in a number of states, including North Carolina and Missouri. Two outgoing governors, North Carolina Governor Michael Easley and Missouri Governor Matt Blunt, faced intense conflict with the media during 2008 over the issue of retention of and public access to government e-mail messages under relevant public records laws. The conflicts were often heated but were ultimately resolved in anti-climatic fashion in the final days of their respective administrations.

In North Carolina, Governor Easley had a public clash with local media organizations when it was reported that the Governor’s staff may have directed state agencies to routinely delete e-mails received in the course of government business. The allegations were made following the termination of the state Department of Health and Human Services’ public information officer for, reportedly, failure to comply with public records requests. As the story unfolded, the news media reported that the Governor had established a policy that allowed state employees to delete messages that had only "short-term" value or no "reference" value. For a comprehensive collection of articles and government statements relating to the e-mail controversy, click here.

Like many states, North Carolina has a public records statute that plainly provides a right of public access to e-mail. Section 132-1(a) provides, in relevant part:

“Public record” or “public records” shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.

The public records statute further provides that “public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people” and that “the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.”

Given the clear statutory language and the absence in the public records statute of any blanket e-mail exemption, media advocates disagreed with the Governor's policy that permitted e-mail messages received in the course of transacting agency business to be deleted. In March 2008, the Governor appointed a panel to review executive office policies concerning the retention of e-mail under the state’s public records law. Then, in April 2008 several news organizations filed a lawsuit to enforce the public records law with respect to the Governor’s e-mail policy. The committee made its recommendations in May 2008.

On January 9, 2009—his last day in office—Governor Easley signed an Executive Order adopting a new e-mail policy making clear that “e-mail messages sent and received in connection with state business are public records.” Of course, this finding is consistent with and, in fact, compelled by the public records statute. The full text of the order, which requires 13 points of action, is provided here.

One significant aspect of the order is that it requires state executive branch employees to retain e-mail messages sent or received in the course of conducting state business for at least 24 hours.  Relatedly, the order requires e-mail messages to be backed up at least once daily and for backup tapes to be kept for at least 10 years; this means that all e-mails should theoretically be available in some electronic form for at least 10 years, although obtaining access to e-mail messages available only on backup tapes may be problematic from a practical standpoint.

The order also requires employees who conduct public business using personal e-mail accounts or personal devices (e.g., Blackberrys) to ensure that all public records are properly retained and archived—obviously, this requires employees to take initiative to retain these e-mails and make them accessible to the agency for archiving and to the public for inspection. The order further directs executive branch employees to treat e-mails they send or receive via government e-mail accounts as public records and to handle those e-mails in accordance with the public records statute; however, the order also appears to leave the determination whether or not to delete e-mail messages (after the 24-hour holding period) to employees.

It is unclear whether newly inaugurated Governor Beverly Perdue will let the Executive Order stand as it is or issue a new or different one.

Beginning in 2007 and lasting through 2008, Missouri Governor Blunt had a similar experience regarding retention of government e-mail. In late 2007, media organizations reported that members of the Governor’s staff may have deleted government-related e-mail messages in violation of Missouri’s public records law. As in North Carolina, a lawsuit was filed concerning the Governor’s e-mail retention policies. Then, on January 5, 2009, only days before Governor Blunt’s term expired and the day trial was scheduled to begin, the court hearing the case approved a settlement agreement that requires a review and report of the Governor’s e-mail retention policies. According to press reports, allegations that the Governor’s office had “‘knowingly and purposely’” violated the state public records statute were dismissed.

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We previously reported a recent intermediate appellate court decision from New Jersey in which the court took a narrow view of the fair report privilege.  That decision gave cause for concern for news organizations in New Jersey because it held that the privilege does not apply to reports on the contents of civil court complaints and filings other than final decisions by the court.

On Tuesday, the New Jersey Supreme Court issued a one-paragraph order that temporarily stayed the effect of the lower court decision while the court considers whether to accept the newspaper's appeal.  The stay restores New Jersey law on the fair report privilege to the law as it existed prior to the earlier decision.  However, the court's action does not signal the ultimate outcome of the case -- the court could ultimately decline to exercise appellate review, which would reinstate the intermediate appellate decision, or it could accept review and affirm the decision.

The Reporters Committee for the Freedom of the Press, along with numerous other media organizations and the New Jersey Press Association submitted an amici curiae brief to the New Jersey Supreme Court, asking it to accept review and reverse the previous decision.  We will continue to monitor the progress of this case as it moves through the New Jersey appellate system.

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As we discussed in this earlier post, anti-SLAPP statutes are laws designed to prevent plaintiffs from using the threat of costly litigation to chill the free speech rights of people seeking to participate in the public debate over important issues.

SLAPP suits -- Strategic Litigation Against Public Participation -- are typically claims for defamation, intentional infliction of emotional distress, invasion of privacy, or tortious interference with contract filed against a party who has criticized or spoken out against the plaintiff in some public context.  The paradigm case is a real estate developer filing a defamation or tortious interference suit against a citizen who has spoken out publicly against a proposed development project.  By filing suit, no matter how weak its claim might actually be, a plaintiff forces the citizen to spend money responding to the claim and, in the process, to think twice about speaking out publicly again.

In response, twenty-six states and one territory have passed anti-SLAPP statutes that offer some procedural protection to defendants in these actions.  In another two states -- Colorado and West Virginia -- courts have granted defendants a defense to lawsuits targeting their exercise of First Amendment rights concerning issues of public importance.

The California statute was the first of its kind and is generally considered the broadest (i.e. most protective of speech rights).  Under the law, any action "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" will be subject to a special motion to strike by the defendant.  This applies to any act by defendant in "furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue."   That includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Click here for a compilation of cases outlining the types of speech covered by the California law.

If the defendant can make a prima facie case that the suit arises from speech or action covered by the statute, the plaintiff then bears the burden of showing a probability of prevailing on the underlying claim.  See Manufactured Home Cmty., Inc. v. County of San Diego, 544 F.3d 959, 963 (9th Cir. 2008).  Thus, where the underlying claim is for defamation, the plaintiff would have to demonstrate early in the proceedings -- before discovery -- the probability that it could satisfy each element of the claim, including falsity and the appropriate standard of fault.  This is undoubtedly a heavy burden for any plaintiff, even one with a meritorious claim.

Equally important for both parties, the California statute provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."  At the same time, "[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion."

It should be noted that in California (as well as in Georgia, Louisiana, Maine, Massachusetts, Minnesota, Oregon, and Rhode Island) discovery in the underlying case is stayed pending resolution of the anti-SLAPP motion to strike unless there is "good cause."  Other states -- Arkansas, Hawaii, Maryland, Missouri, and Pennsylvania -- have an unqualified discovery stay.

States with less far-reaching anti-SLAPP laws than California's limit the scope of the statute to speech concerning public bodies.  For example, the Minnesota statute applies to any "public participation," which the law defines as "speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action."

While these narrower statutes may be adequate to protect individuals speaking out about government actions, they offer less protection for media defendants.  A court in Massachusetts, for example, held that a newspaper campaign to discourage the construction of a mosque did not fall within the scope of the state's anti-SLAPP statute, which covers the exercise of the "right of petition under the constitution of the United States or of the commonwealth."   The court there allowed the plaintiff's defamation claim to go forward.  Islamic Soc'y v. Boston Herald, Inc. (Mass. Super. Ct. July 20, 2006).

Finally, eight states (California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah) allow so-called "SLAPPback suits," which provide that defendants who have been hit with a SLAPP suit can file a counterclaim against the plaintiff to recover compensatory and punitive damages for abuse of the legal process.  While these suits do not help the defendant avoid the time and expense of litigation, they can act as a deterrent to those considering filing what might be a SLAPP suit.

If you are in a state with an anti-SLAPP law, and you or your news organization gets hit with what you believe is a SLAPP suit, it is important to immediately seek legal counsel familiar with the contours of the statute as it may mandate specific deadlines for filing a special motion to strike.

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The California Supreme Court in mid-December ruled that a statutory exception to the state's landmark anti-SLAPP statute should be narrowly construed, reversing a lower court ruling to the contrary.

California's anti-SLAPP (Strategic Litigation Against Public Participation) statute, which was the first of its kind when it was passed in 1992, allows defendants to make a special motion to strike any claim against them arising out of their "right of petition or free speech" unless the plaintiff can show a probability of success on the claim.  In essence, the statute prevents plaintiffs from using litigation to chill the speech of those who seek to participate in debate on issues of public importance.  By giving defendants an avenue to throw out such a suit early in the process -- before motions and discovery consume substantial time and money -- the statute keeps plaintiffs from using the threat of litigation to quiet debate.  California's statute also gives prevailing defendants the opportunity to recover their attorneys' fees.

At issue in the recent case taken upon by California's Supreme Court was Section 425.17 of the California Code of Civil Procedure, which provides an exception to the state's anti-SLAPP law for "any action brought solely in the public interest or on behalf of the general public." 

The underlying dispute arose out of the Sierra Club's 2004 elections for five board of directors positions.  In the weeks just prior to the election, the then-current board sent out notices to club members warning them that if they did not take part in the elections, a small minority faction influenced by "outside groups" could win the spots and eventually control the board.  One of the candidates opposing the current board filed suit, seeking injunctive relief including removal of the newly elected board members.  The Sierra Club sought to have parts of the suit dismissed under the anti-SLAPP statute, which the trial court granted.  On appeal, the Court of Appeals held that the public interest exception applied here because the "principal thrust or gravamen" of the plaintiffs' complaint was to advance the public interest.

The Supreme Court disagreed, holding that given the clear statutory language, the public interest exception could only apply when the sole motivation for the suit was the public interest.  If the plaintiff stands to receive any relief in addition to that received by the public in general, the exception cannot apply.  This narrow interpretation of the Section 425.17 exception is a significant victory for those seeking to preserve the vitality of public debate in California.

In an upcoming post, we will look more in-depth at anti-SLAPP statutes around the country and what they mean for journalists and news organizations.

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The invaluable Media Law Resource Center recently released a report detailing state efforts to pass shield laws in the past three years.

According to the report, because of the high-profile contempt arrests of reporters James Taricani in 2004 and Judith Miller in 2005, legislative support for the reporter's privilege gained significant momentum.  As a result, five states -- Hawaii, Maine, Utah, Washington, and Connecticut -- passed shield statutes, bringing the total nationally to 36 states plus the District of Columbia.

Three other states, however, attempted to pass shield statutes in the past two years and failed.  In Kansas, Senate Bill 313 was introduced in the 2007 session with bipartisan support from the Senate minority and majority leaders.  Despite this support, however, the bill did not make it out of the Judiciary Committee in 2007 or 2008, and it now appears to be dead.

In Missouri, bills were introduced in 2005 and again in 2007 that would have provided a qualified reporter's privilege.  In 2007, the bill passed the House and was approved 7-1 by the Senate Judiciary Committee by was never voted on by the full Senate because of threats of a filibuster from key Senators.  A final attempt in 2008 to pass a version of the bill never received a vote by the House.

Finally, in Texas, the Free Flow of Information Act was passed by the Senate in 2007 and sent to the House for consideration.  The bill made it out of the House Judiciary Committee and onto the floor for debate, but was immediately killed on procedural grounds.

Given the uncertain extent of the First Amendment's protection for reporters who find themselves served with a subpoena (which we discussed in a previous post), it is critical that reporters and editors know what protection, if any, state law offers.  For those engaged in newsgathering in states without shield statutes, these times call for you to redouble your efforts to make the case for why, as a public policy matter, your state should enact a statutory privilege against the compelled disclosure of sources and source materials.

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