On April 24, 2019, the Supreme Court of Ohio will hear oral argument in Aaron Anderson, et al, v. WBNS-TV, Inc., 2018-0792. At issue in the case is the requisite degree of fault required in this internet era in private figure defamation cases where the media publish stories about matters of public concern in reliance on information provided by official sources. The case will be argued at Geneva High School in Ashtabula County as part of the Court’s off-site program.
On January 20, 2016, WBNS-TV (“WBNS”) put together a news broadcast and a web-based story which indicated that three members of the Anderson family had been involved in the robbery of an eight-year-old girl at a Columbus waterpark, and the theft of her hoverboard. WBNS’ research for the broadcast was based on a Media Information Sheet provided by the Columbus Police Department (“CPD”). The Media Information Sheet stated that two unknown suspects had been involved in a robbery of a young girl and that the two suspects had a female accomplice whose role was unknown. The report was accompanied by two photographs. One, called the “Parking Lot Photograph” shows an empty parking lot with several grainy images standing together. The other, known as the “Hall Photograph” clearly shows two males and a female, later identified as the Andersons, walking down a hall. The CPD Media Information Sheet refers to the persons in the photographs only as persons may have been involved in the crime.
WBNS relied on the Media Information Sheet in preparing its broadcast, but rewrote the story for its newscast. During the broadcast, WBNS reported that CPD believed the Andersons to be suspects, and displayed the accompanying photos. The Andersons went to police headquarters and were cleared of the accusations. CPD informed WBNS that the Andersons were no longer considered suspects. WBNS then removed the photos from its broadcast, Facebook page, and website. However, WBNS refused to provide a retraction of any sort. Aaron, Aaronana, and Arron Anderson (“the Andersons”) brought suit against WBNS for defamation in the Franklin County Court of Common Pleas. WBNS filed a motion for summary judgment which Judge Laurel Beatty Blunt granted. The Andersons appealed.
On appeal, the Tenth District, in a unanimous opinion authored by Judge Gary Tyack and joined by Judges Jennifer Brunner and Tim Horton, reversed the grant of summary judgment on the defamation claim, finding that there were genuine issues of material fact as to whether broadcasting an accusation that the Andersons were robbers without investigation, and based a set of police documents which claimed only that some of the Andersons were suspects, is sufficient to establish a violation of the requisite duty of care. “Frankly, a media outlet has a stronger duty to research the facts in such cases than it did when the Landsdowne case was decided,” wrote Judge Tyack, noting that “false stories on the internet do not just disappear because the truth is later discovered.” Summary judgment on the remaining claims for intentional infliction of emotional distress, loss of consortium, and publishing newspaper corrections pursuant to R.C. 2739.14 was upheld. WBNS appealed.
Votes to Accept the Case
Yes: Justices Kennedy, Fischer, French and former Justices O’ Donnell and DeGenaro.
No: Chief Justice O’Connor, and Justice DeWine
Key Statutes and Precedent
U.S. Constitution, Amendment I (“Congress shall make no law . . . abridging the freedom of speech or of the press; . . .”)
Ohio Constitution Article I, Section 11 (“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. . . .”)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (States have wide discretion to establish standards for defamation and may establish any standard so long as the standard does not impose liability without fault.)
LeBoeuf v. Times Picayune Pub. Corp., 327 So.2d 430 (La.App.1976) (A publisher is not liable for publishing false information if that information was obtained from reliable sources in accordance with established methods and processes.)
Lansdowne v. Beacon Journal Publishing Company, 32 Ohio St.3d 176 (1987) (In private-figure defamation actions, where a prima facie showing of defamation is made by a plaintiff, the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication.)
Gosden v. Louis, 116 Ohio App.3d 195 (9th Dist.1996) (Written matter is libelous per se if, on its face, it reflects upon a person’s character in a manner that will cause him to be ridiculed, hated, or held in contempt, or in a manner that will injure him in his trade or profession.)
Am. Chemical Soc. v. Leadscope Inc., 2012-Ohio-4193 (When determining whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances which includes reading the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.)
Sullins v. Raycom Media, Inc., 2013-Ohio-4697 (8th Dist.) ( Mere reliance on credible source information alone is insufficient to demonstrate reasonableness.)
The Tenth District’s opinion establishes a new standard for private-figure defamation cases beyond showing negligence by the speaker. For thirty years, in private-figure defamation cases arising from published speech on matters of public concern, this Court has required proof of negligence by clear and convincing evidence. This standard comports with the U.S. Supreme Court’s decision in Gertz that allows states to retain substantial latitude when determining fault in private-figure defamation suits so long as the state does not impose liability without fault.
This Court’s standard strikes the appropriate balance between allowing breathing space for a free press and providing recovery for injured plaintiffs. The standard adopted by this Court is not an anomaly; forty states have adopted a negligence standard for private-figure defamation claims, while six require a higher standard, and the remaining four states have not examined the issue. This means that not one state has required a stronger duty than the negligence standard—except in Franklin County.
Lower courts are not free to disregard precedent established by a superior court unless and until those precedents are overruled or altered by that higher court. The Tenth District ignored the rulings of this Court and fashioned its own standard for private-figure defamation cases. The explanation given by the Tenth District, that the internet changes the standards applicable in this case, is erroneous and at odds with basic principles of First Amendment jurisprudence. The U.S. Supreme Court has stated that emerging technologies do not alter the command of the First Amendment. Such new and emerging technologies must be examined under existing First Amendment principles. It is clear that defamation standards remain unchanged despite the change in the medium of communication.
Even assuming the Tenth District was permitted to articulate a new standard, the “stronger duty” pronouncement is vague and offers no workable guidance for journalists or other media professionals impacted by the ruling. This ruling, if left unchanged, will serve only to chill otherwise protected speech. The same chilling concern arises when the Tenth District states that a “stronger duty” is imposed because of the financial resources of the publisher or because of the ability of third-parties, over whom the original publisher has no control, to republish potentially defamatory material. Both propositions are anathema to the Constitution’s guarantee of equality before the law and the First Amendment.
As a matter of law, a media defendant is not negligent if it reasonably relies on information provided by official sources, including law enforcement. Adopting the Tenth District’s approach would abolish this standard, chill reporting by news organizations, and deprive the public of vital information. Information received from official sources, like law enforcement, is presumed reasonably reliable. Media outlets have no alternative means of verifying this information from other external sources and is under no additional obligation to contact potential subjects before publishing the information. As such, WBNS reasonably relied on the information provided by the Columbus Police Department, and when the Columbus Police corrected the information provided to WBNS, WBNS corrected its report.
When examining whether defamation occurred, Ohio law is quite clear. A court must examine the totality of the circumstances surrounding the alleged defamation by reading the statements in context. Excerpting troubling portions of a given report or story is not sufficient to prove defamation occurred. Both the headline and the body of an article must be taken together to appreciate the full context of alleged defamation. A headline which states a fact cannot be used as proof of defamation when specific individuals are not named in that headline. Further, even if individuals are named, the headline must be taken in context of the whole article to determine whether a reasonable person would view it as defamatory. Here, the Andersons were not named or identified in the story’s headline, “Robbers Put Gun to Child’s Head and Steal Hoverboard.” The Andersons’ attempt to isolate the headline or lead-in of the story plainly contravenes Ohio law, which requires reading the allegedly defamatory statements in the context of the entire report.
There are genuine issues of material fact in this case about whether WBNS reasonably relied on the Police Media Information Sheet when it accused the Andersons of robbery without investigating the accuracy of what it reported.
WBNS’ argument that the Tenth District’s decision creates a new internet standard for defamation is a mischaracterization of the dicta within the Tenth District’s opinion. The Tenth District’s opinion applied the Gertz standard, yet found that WBNS was at least negligent when it put no additional effort into determining the truth or falsity of the information provided, and caused damage to the Andersons by not issuing a retraction of its false story or provide any notice of prior false reporting regarding the Andersons. The Andersons never sought to change the required standard in private figure defamation cases, nor did the appeals court do so. Rather, the Andersons argue that a new standard is unnecessary to find WBNS at fault for its defamatory web publication. The facts demonstrate clear and convincing evidence of WBNS’ negligence in publishing all three news items at issue before this Court. The Andersons need not, and do not, advocate for a higher duty of care to be imposed on WBNS. WBNS rewrote the information from the police “Media Information Sheet” into broadcasts and web posts accusing the Andersons of armed robbery. The Andersons are not public figures, and WBNS refused to print a retraction. These facts, according to the Tenth District, are sufficient to survive a motion for summary judgment in a private figure defamation case.
In a private figure defamation case, a plaintiff must prove by clear and convincing evidence that a defendant failed to act reasonably in attempting to discover the truth, falsity, or defamatory character of the publication. WBNS asks this Court to assume it acted reasonably by relying on information provided by the Columbus Police Department, thereby relieving it of any duty to investigate. Yet WBNS created the incorrect and defamatory information and failed to investigate the accuracy of its own false claims. The Andersons do not dispute that the Media Information Sheet is a credible information source. But while the Media Information Sheet described the Andersons as “persons who may have been involved,” WBNS described the Andersons as “robbers” and “suspects.”
The Andersons assert that WBNS did not act reasonably by failing to try and discover whether its publication was defamatory. Other lower courts have held that reliance on information provided by a reliable source is not sufficient to satisfy the requirement of reasonableness when that source has been altered by the publisher. Precisely because reasonable minds may differ about the conclusions WBNS drew from the Media Information Sheet, a genuine issue of material fact exists and supports denial of summary judgment.
The Andersons’ defamation claim relies exclusively on the materials originally produced and published by WBNS. Although the Andersons and the Tenth District both address the harm of republication in light of the power of the internet, neither argues that liability should be imposed for republication. The Andersons’ claim is based solely on the publication of false information. There is no dispute that the Andersons were not robbers. There is also no dispute that a written false statement or a television broadcast accusing someone of committing a crime is defamatory per se. The only issue becomes whether, considering the whole context of the publication, a reasonable reader would interpret the publications as defamatory. Here, all three publications identify the Andersons, depicted by photograph, as the subject of the defamatory publication. Further, the full context of these stories does not temper their defamatory nature. The only qualifier used by WBNS occurs at the end of the broadcast by inserting the word “suspects.” This does not dissuade the reader from concluding that the Andersons were the ones who robbed an eight-year-old girl. Upon viewing all three publications of WBNS under the totality of the circumstances, the publications made by WBNS are false and accuse the Andersons of robbing a young girl by pointing a gun at her head.
The Andersons’ claim is supported by the evidence and does not turn on anyone’s financial status. WBNS’s contention to the contrary is again a misrepresentation of dicta from the Tenth District’s opinion. The Andersons have demonstrated clear and convincing evidence of at least negligence, sufficient to allow this case to proceed to trial on the merits. Therefore, the Andersons request that this Court affirm the denial of summary judgment.
WBNS’ Proposed Propositions of Law
First Amendment protections and jurisprudence extend to speech published on the Internet, and, specifically, this Court’s decision in Lansdowne v. Beacon Journal Publ’g Co., which set the fault standard in private-figure defamation cases, applies equally to statements published on the Internet.
The Tenth District’s “stronger duty” requirement is unlawfully vague – it sets a “standard” that is untethered to principles of First Amendment jurisprudence.
The law does not require the news media to conduct their own investigation or withhold publishing the news until they are able to contact the persons implicated or otherwise inquire into and corroborate official information supplied by law enforcement.
Persons are not liable under the law of defamation for statements that they do not publish or authorize another to publish.
In determining whether a statement is defamatory, a court must review the totality of the circumstances and by reading the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.
The essential elements of a defamation claim do not turn on the relative financial condition of the plaintiff and defendant.
Amici in Support of WBNS
State of Ohio
The State of Ohio filed a brief in support of WBNS. The State emphasizes the importance of maintaining the negligence standard for defamation. According to the State, deviation from this standard would have detrimental effects on news organizations and result in a substantial chilling effect on those organizations’ speech. The State also highlights the importance of the presumption that reports provided by law enforcement are considered reliable and shield organizations from liability if that published information is later discovered to be false.
State’s Proposed Proposition of Law
Absent a showing of actual malice or of negligence by clear and convincing evidence, a person who transmits or reports to the public a government request for information on a matter of public concern may not be found liable for defamation.
The Ohio Association of Broadcasters, Ohio News Media Association, American Society of News Editors, Associated Press Media Editors, Radio Television Digital News Association, Reports Committee for Freedom of the Press, and Society for Professional Journalists filed a brief in support of WBNS. Amici assert that Ohio’s negligence standard for private figure defamation is not altered when statements are published via the internet. Specifically, the Tenth District’s opinion undermines the negligence standard by imposing a duty on a news organization beyond that of “reasonable care.” The Tenth District’s judgment was clouded by considering external factors which arose post-publication and were, therefore, not relevant to the defamation claim at issue. The “stronger duty” requirement set by the Tenth District is impermissibly vague. The law as it exists permits the news media to safely rely on information provided by public officials and to communicate that information to the public.
Student Contributor: Paul Taske