Friday, November 08, 2013

State sued for alleged defamation after publishing information depicting the plaintiff as a “sexual offender/predator”

State sued for defamation after publication of information depicting the plaintiff as a “sexual offender/predator”
2013 NY Slip Op 51814(U), Court of Claims, Judge Judith A. Hard [Not selected for publication in the Official Reports.]

In this action filed in the Court of Claims, the plaintiff [Anonymous] sought damages for alleged defamation arising out of “the State’s implementation, organization, publication, portrayal and dissemination of photographs and materials” which depicted Anonymous to third persons as a sexual offender/predator even though Anonymous was never charged with a sexual offense or convicted as a sexual offender/predator.

In her decision Judge Hard found that Anonymous proved liability by a preponderance of the credible evidence and explained the relevant law with respect to the issue before her, i.e.,  Did the publication of those statements constituted defamation? 

Defamation, said the court, "is defined as the making of a false statement which tends to ‘expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.' [while] [d]efamation is the injury to one's reputation, either by written expression (libel) or oral expression (slander)."

In the words of Judge Hard “The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se. Publication of a photograph constitutes dissemination of information.”

In this case, the Court concluded that a State law enforcement agency's employee’s speech to the press, a press release, a media advisory and “the display of the [Anonymous’] mug shot on the wall of shame,” all of which wrongly imply that Anonymous was a sexual predator, constitute false statements. In addition, the court concluded that “the publication of said statements was not authorized.”

The issue for the court to determine: “Whether the statements were privileged, whether the fault amounts at least to negligence on the part of defendant, and whether the statements caused special harm or constitute defamation per se.”

As to “privilege,” a public official being sued for alleged slander or liable may claim an “absolute privilege” or a “qualified privilege.”

Absolute privilege protects "communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings" but only extends to comments "made in the context of official communications by a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy making responsibilities.” 

Further, Judge Hard said that “Absolute privilege attaches to actions performed by delegation on behalf of a department head of an agency, but not to those actions undertaken by an employee on their own behalf in the discharge of their own official duties.”

As to “qualified privilege,” Judge Hard said that “Press statements made by governmental representatives concerning governmental affairs are covered by such a qualified privilege. To establish such a [qualified] privilege, defendant needs to submit proof establishing that it was objectively reasonable for the defendant to believe that its conduct was appropriate under the circumstances. A [qualified] privilege will attach to statements in which the communicating party possesses a legal duty to communicate information about another, if the communicator has a good-faith belief that the information is true.”

In this action, the State did not claim an absolute privilege.

As to any “qualified privilege,” Judge Hard indicated that although a qualified privilege may apply to press statements made by governmental representatives concerning governmental affairs, the State defendant cannot avail itself of the qualified privilege defense here  because the State defendant did not submit any proof that its behavior was even remotely reasonable under the circumstances or that it had a good-faith belief that Anonymous was an online sexual predator. To the contrary, Judge Hard said that it was clear that State, through the actions of it employees, was aware that Anonymous was charged with a crime - criminal possession of a controlled substance. However, noted the court, Anonymous had not been charged with any of the internet crimes that was the subject of the press conference or press release.

Judge Hard found that “no privilege attaches to any of the alleged defamatory statements,” and then commented “… even if a qualified privilege did exist, it would be overcome by malice as [the State] recklessly disregarded the truth (i.e. that [Anonymous] was charged with criminal possession of a controlled substance) when affixing [Anonymous’] photo to the wall of shame designed to highlight online predators.”

The Court’s conclusion:

1. The State’s “fault rises at least to negligence, and further that the defamatory statements constitute defamation per sebecause they would naturally import a criminal or disgraceful charge to the mind of an intelligent person.”

2. Anonymous has proved [the] case by a preponderance of the credible evidence.

Holding that the State “is 100% liable for the defamation,” Judge Hard said that a trial on damages “shall be scheduled as soon as practicable.”

The decision is posted on the Internet at:

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