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Recent Developments in Media, Privacy, and Defamation Law

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Recent Developments in Media, Privacy, and Defamation Law RECENT DEVELOPMENTS IN MEDIA, PRIVACY, AND DEFAMATION LAW Shari Albrecht, John P. Borger, Patrick L. Groshong, Ashley Kiss- inger, Joseph R. Larsen, Katharine Larsen, Thomas Leatherbury, Steven P. Mandell, Katherine E. Mast, Catherine Van Horn, Leita Walker, Thomas J. Williams, and Steven Zansberg I. Defamation ................................................................................ 361 A. Public Concern and Substantial Truth: Bad News for Criminals ...................................................... 361 B. Fair Report and Absolute Privileges: More Bad News for (Alleged) Criminals ........................................................ 361 C. New York Court Protects Identity of Gmail E-mail Sender ...................................................... 362 D. Expansion of Anti-SLAPP Laws, CSI , and a Celebrity Soccer Star to Boot .............................................................. 363 Steven P. Mandell is a partner at Mandell Menkes LLC in Chicago. Shari Albrecht is a principal at Albrecht Law LLC in Chicago. John P. Borger is a partner and Leita Walker is an associate at Faegre Baker Daniels in Minneapolis. Thomas J. Williams is a partner at Haynes and Boone, LLP, in Fort Worth. Steven Zansberg and Ashley Kissinger are partners in the Denver office and Katharine Larsen is an associate in the Philadelphia office of Levine Sullivan Koch & Schulz, L.L.P. Thomas Leatherbury is a partner at Vinson & Elkins LLP in Dallas. Patrick L. Groshong is Assistant Vice President—Claims at AXIS PRO in Kansas City. Katherine E. Mast is a senior associate in the Los Angeles office of Sedgwick LLP, and Joseph R. Larsen is special counsel in the firm’s Houston office. Cath- erine Van Horn is of counsel at Genovese Joblove & Battista, P.A., in Miami. Mr. Borger is a former chair of the TIPS Media, Privacy, and Defamation Law Committee. Mr. Zansberg is a former chair and current vice chair. Messrs. Borger and Groshong and Ms. Mast are also committee vice chairs. The authors acknowledge the assistance of summer as- sociates Aaron Knoll (University of St. Thomas) and Kathleen Cullinan (Yale Law School). 359 33058-133_14-MEDIA058-133_14-MEDIA LLAW-3pass-r02.inddAW-3pass-r02.indd 359359 44/10/2012/10/2012 111:05:531:05:53 PPMM 360 Tort Trial & Insurance Practice Law Journal, Fall 2011 (47:1) II. Privacy ....................................................................................... 364 A. Misappropriation ................................................................. 364 B. False Light Invasion of Privacy ........................................... 365 C. Intrusion ............................................................................... 367 D. Publication of Private Facts ................................................. 368 III. Internet Law .............................................................................. 368 A. Unmasking Anonymous Online Speakers .......................... 368 B. Section 230 Immunity for Third-Party Content ................ 370 C. Personal Jurisdiction ............................................................ 372 D. Single Publication Rule ....................................................... 374 IV. Access ......................................................................................... 375 A. The Supremes ...................................................................... 375 B. Access to Court Proceedings ............................................... 376 C. Access Under State Freedom of Information Acts ............. 377 V. Newsgathering ........................................................................... 378 VI. Reporter’s Privilege ................................................................... 382 A. Federal Legislative Efforts and Cases ................................. 382 B. State Legislation and Cases ................................................. 385 VII. Insurance .................................................................................... 386 A. Defamation .......................................................................... 386 1. Recent Developments Regarding Intentional Acts Exclusions ............................................................... 386 2. Defamation May Only Be Inferred for Purposes of Coverage When the Elements Are Alleged in the Complaint ............................................................. 387 B. Media: Content of Labeling and Marketing Is Not Loss Arising from Creation or Dissemination of Advertising Material Relating to Covered Media for Purposes of Media Wrongful Acts Coverage .......................................... 388 C. Privacy .................................................................................. 389 1. Developments in Liability Coverage for Fax Blasting Claims .................................................. 389 2. Alleged Acts of Sexual Harassment Not Covered Privacy, Slander, or Defamation ..................................... 391 The Supreme Court provided much of the interest during this survey period, in Snyder v. Phelps 1 and a pair of cases taking a narrow view of FOIA exemptions. On the other side of the coin, advocates for open government in Texas have been having a rough go of it. Developments relating to the 1. 131 S. Ct. 1207 (2011). 33058-133_14-MEDIA058-133_14-MEDIA LLAW-3pass-r02.inddAW-3pass-r02.indd 360360 44/10/2012/10/2012 111:05:531:05:53 PPMM Media, Privacy, and Defamation Law 361 website WikiLeaks and phone hacking allegations will doubtless continue to be the subject of legal scrutiny in years to come. i. defamation A. Public Concern and Substantial Truth: Bad News for Criminals A Massachusetts appellate court ruled that a convicted felon’s online dating life is a matter of public concern. In LaChance v. Boston Herald , a three- article newspaper series reported that a prison inmate—incarcerated for aggravated rape—had been using an online dating service called “Inmate Connections” to meet women. 2 In his posted advertisement, the inmate indicated that he was only in prison for manslaughter, but the article stated that he was committed for a “brutal sexual attack on an elderly woman.”3 The court held that the inmate was a limited-purpose public figure because the danger of interacting with violent felons online is a matter of public concern, and it held that the statements were made without actual malice.4 It also held that the article’s purpose was to create public awareness: “In context, the ‘gist’ of the articles in this regard was . that the plaintiff’s particular advertisement was dangerously deceptive by withholding his crimes while portraying himself in a light that would seem more innocu- ous to potential respondents on a match-making Web site.” 5 In a gang-affiliation defamation case profiled in this survey last year, Bustos v. A & E Television Networks , the Tenth Circuit affirmed the district court’s decision, holding that the statement that an inmate was a member of the Aryan Brotherhood prison gang was substantially true because he “conspired with the Brotherhood in a criminal enterprise.” 6 B. Fair Report and Absolute Privileges: More Bad News for (Alleged) Criminals Winner of this year’s award for “Creepiest Plaintiff ” is Steven Klig, who sued Harper’s Magazine after it published excerpts from a criminal com- plaint against him. 7 In 2009, a U.S. Attorney’s Office filed a criminal com- plaint against Klig for extortion and stalking based on correspondence in which Klig threatened to circulate a sex tape featuring his ex unless she sent him nude photographs of herself. Harper’s published verbatim excerpts of 2. 942 N.E.2d 185 (Mass. App. Ct. 2011). 3. Id . at 186. 4. Id . at 188. 5. Id . at 188–89. 6. No. 10-1253, 2011 WL 2816869, at *1 (10th Cir. July 19, 2011). 7. Klig v. Harper’s Magazine Found., 2011 N.Y. Misc. LEXIS 2098, 39 Media L. Rep. (BNA) 1997 (N.Y. Sup. Ct., Nassau Cnty., May 4, 2011). 33058-133_14-MEDIA058-133_14-MEDIA LLAW-3pass-r02.inddAW-3pass-r02.indd 361361 44/10/2012/10/2012 111:05:531:05:53 PPMM 362 Tort Trial & Insurance Practice Law Journal, Fall 2011 (47:1) the correspondence included in the complaint in its “Readings” section under the title “You’re a Mean One, Mr. Klig.” 8 Klig admitted that he sent the e-mails but argued that Harper’s failure to use the word “allegedly” would lead readers to infer that he had actually been convicted of blackmail- ing when he had not.9 The court found this argument “entirely unavailing” primarily because the introductory paragraph explicitly stated both that the quoted material was part of a criminal complaint and that Klig had pleaded not guilty to the charges against him. 10 Meanwhile, in Norman v. Borison , 11 the Maryland Court of Appeals re- jected the claim that defendants, all class action attorneys, defamed plain- tiff by circulating copies of court complaints and by speaking to a reporter. The plaintiff, who was implicated by the complaints as having participated in “the single largest mortgage scam in Maryland history,” argued that de- fendants’ publication of the complaint was not privileged because they pro- vided the press with a copy before the complaint was filed in state court. 12 The court rejected this argument, finding that “the press could be seen as a tool assisting in the notification to potential class members of the con- templated proceedings.” 13 Thus, it considered defendants to have issued the statements at issue “during the course of the putative class action.” 14 As to publication of subsequent versions of the complaint on the Inter-
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