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December 24, 2010

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department

Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.

Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*

A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."

Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”

Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.

* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.

** Common requires proof of hatred or ill will.

*** See New York Times Co. v. Sullivan, 376 U.S. 254

The decision is posted on the Internet at:

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