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Defamation Action Against New York Post Dismissed Under NY Civil Rights Law § 74

by mjpospis on November 20, 2018

in Defamation

In Gillings v. New York Post, 2018 NY Slip Op 07413 (App. Div. 2nd Dept. Nov. 7, 2018), the court affirmed the dismissal of a defamation action against the New York Post and Julia Marsh, on the basis of New York Civil Rights Law § 74.

The court summarized the law as follows:

Civil Rights Law § 74 is an affirmative defense to a claim of defamation” (Greenberg v Spitzer, 155 AD3d 27, 42). That section provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” (Civil Rights Law § 74). The privilege afforded by this statute is absolute “and is not defeated by the presence of malice or bad faith” (Glendora v Gannett Suburban Newspapers, 201 AD2d 620, 620; see Cholowsky v Civiletti, 69 AD3d 110, 114). “This absolute privilege applies only where the publication is a comment on a judicial, legislative, or other official proceeding . . . and is a fair and true’ report of that proceeding” (Saleh v New York Post, 78 AD3d 1149, 1151, quoting Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 NY2d 63, 67).

As to the threshold requirement that the publication purport to comment on a judicial, legislative, or other official proceeding, if the context in which the statements are made makes it impossible for the ordinary viewer, listener, or reader to determine whether the defendant was reporting on a judicial or other official proceeding, the absolute privilege does not apply (see Saleh v New York Post, 78 AD3d at 1151-1152; Cholowsky v Civiletti, 69 AD3d at 114-115; Wenz v Becker, 948 F Supp 319, 323 [SD NY]).

As to the requirement that the publication be a fair and true report of the official proceeding, the Court of Appeals has recognized that “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality” (Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 NY2d at 68). Accordingly, “[w]hen determining whether an article constitutes a fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” (id. at 68). Rather, “[f]or a report to be characterized as fair and true’ within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate”[.]

Applying the law, the court held that dismissal was proper, where (inter alia) “the subject newspaper article explicitly stated that it was describing the divorce action commenced against the plaintiff by his former wife” and “the defendants’ documentary evidence established, as a matter of law, that the disputed language in the newspaper article was a ‘fair and true’ report of the factual findings made in the divorce action[.]”

Categories: Defamation

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