Defamation Arising Out of Court Filings-Salzano v. North Jersey Media Group, Inc., et. al.

Continuing on the topic of defamation, I thought about bringing to the notice of the readers an interesting case which brings a new dimension to the Fair Report Privilege to the statements made in the judicial proceedings.

The New Jersey Appellate Division recently handed down an important decision relating to the republication of allegations that were originally set forth in a legal complaint. In Salzano v. North Jersey Media Group, Inc., et. al., A-6715-06T1, the plaintiff, Thomas John Salzano sued various newspapers and related individuals at those entities for defamation. The statements underlying the alleged defamation consisted of newspaper articles that outlined (and arguably elaborated upon) a complaint brought against Mr. Salzano by a bankruptcy trustee. The complaint alleged, among other things, that Mr. Salzano had “‘unlawfully diverted, converted and misappropriated’ [the entity that was in bankruptcy]’s funds ‘for his own personal benefit.’” These allegations were then reported in various newspaper articles published by the defendants.
The media defendants moved to dismiss the civil complaint on the basis that the fair report privilege should apply as a defense to defamation. The Appellate Division reversed the lower court decision and held that the privilege did not apply. Hence, the case should not be dismissed.
The fair report privilege is an established exception to republication liability under New Jersey defamation law. The general rule is that absent the application of a privilege, a person or entity is liable for republishing a defamatory statement. The Court in Salzano cited the New Jersey Supreme Court’s decision in Costello v. Ocean County Observer, 136 N.J. 594 (1994), where the fair report privilege was articulated and discussed at length. Citing Costello, the Court noted that “to republish a defamatory statement, the reporter or newspaper must verify that a statement was spoken, and also that the substance of the statement is true.” Accordingly, the Court held that the newspapers and related defendants erred in not verifying the facts of the complaint prior to republishing them in the articles.
The Court further held that the fact that the original statements were made in the context of a judicial proceeding was not enough to immunize the media entities. In so holding, the Court noted that although the fair report privilege applies to statements made in “judicial and other official proceedings,” it did not provide an exception to liability in this case. The Court noted that the fair report privilege does not apply to preliminary pleadings “‘such as a complaint or petition, before any judicial action has been taken.’” Accordingly, the Appellate Division held that the media defendants could not assert that the privilege extended to their republication merely because the statements were republished from a judicial filing. Specifically, the Court said that the fact that they were in a complaint made it clear that the privilege should not apply.
Another interesting determination by the Salzano Court was that the actual malice standard should apply to Mr. Salzano’s claims because he was, in essence, a public figure by association. This essentially means that it would not be enough to prove that the defendant was negligent in publishing the statements, but instead, the plaintiff would need to prove an intentional misstatement or willful disregard of the truth. The Court specifically noted that at the time of the articles’ publication, Mr. Salzano was not a public figure. Nevertheless, the Court noted that, as the chief managing officer of the bankrupt entity which was in a highly regulated industry, Mr. Salzano’s father was a public figure. The Court noted that the bankruptcy made the company’s business affairs a matter of public interest and concern. The Court then extended this to indicate that, through the allegations made against him, Mr. Salzano had himself become “enmeshed in a matter of public concern.” Therefore, the Court applied the more stringent, actual malice standard. (Internet Defamation Law Blog)

Defamation

Defamation is one of the most common allegation that routinely gets levelled against a media house/ media professional involved in publishing and broadcasting. Defamation law suits are filed seeking damages, public apologies etc. from the publisher/broadcaster for damage to the reputation of the person filing the suit. In the following paras, I would attempt to simplify the law on defamation from the perspective of a layman's understanding.

Whats "defamation" ?

Defamation means a false publication calculated to bring a person in disrepute. It is an intentional false communication (be it print, broadcast, Internet or any other means of communication), either published or publicly spoken, that injures another persons’ reputation or good name. Thus, the essentials of defamation claim involves two things, communication to public and a consequent damage to the reputation, good will or image of a person.

Thus to succeed in a defamation suit the following are the things that need to be present;

To succeed in a suit for defamation, the presence of the following four ingredients is necessary :

(i) The statement must be defamatory;
(ii) The statement must refer to the plaintiff;
(iii) The statement must be published by the defendant; and
(iv) The statement must be false.

Types of defamation

Defamation can be classified into two types, "Libel" and "Slander". Libel is malicious defamation, expressed either in print or writing or by signs and pictures etc. which is intended to damage the reputation, good will of a person. On the other hand Slander means the same offence of defamation committed orally through spoken words used by one person against another. While therefore both libel and slander are two different forms of defamation, libel is in writing while slander is oral. Each of these give a right of action to the defamed person against the person so doing.

Legal Remedy

Legal remedy under the law can be invoked by filing complaint under section 499 & 500 of the Indian Penal Code.

Defence in a defamation suit

Accused person can seek any of the following as defences in a defamation suit

(i) Truth- That the statement alleged to defamatory is a truth;

(ii) Statements made in good faith and with a reasonable belief that they were true;

(iii) Innocent dissemination is a defense available when the had no actual knowledge of the defamatory nature of the statement or had no reason to believe that the statement was defamatory.

(iv) Privileged Statement is a defense when witnesses' testimony, attorneys' arguments, and judges' decisions, rulings, and statements made in the court, or statements made by legislators on the floor of the legislature or in the Parliament, or statements made by a person to his/her spouse, are the cause for the claim.

(v) Opinion: If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable.