Internet Defamation Law Blog

New Jersey Court Finds that Identities of Sources Used for Donald Trump Biography are Protected by New York Shield Law

Fair Report Privilege: New York Shield Law: A New Jersey Appellate Court recently held that the identities of information sources utilized by the author in composing a biography of Donald Trump were protected from discovery by the New York Shield Law. In Trump v. O’Brien, the defendant Timothy O’Brien was the author of a book which claimed that several individuals having personal knowledge of Mr. Trump’s finances had indicated that his net worth was somewhere in the neighborhood of $150 to $250 million, and that he was not a multibillionaire as he had previously claimed. In response, Mr. Trump sued the author for defamation.

In reaching its decision, the Court first considered choice-of-law principles. It determined that New York law would apply since the action had a significant relationship to the State. Specifically, the Court noted that the book had been published in New York, the author’s career was centered there and many of Mr. Trump’s business interests were located in the State. The New Jersey Court therefore decided this case applying New York law.

Under the New York Shield Law, N.Y. Civ. Rights §79-h, sources of confidential information are provided absolute protection where the information is deemed to be “news” for purposes of the statute. The law defines “news” as “written, oral, pictorial photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.” Applying this broad definition, the Court ultimately found that although the details of Mr. Trump’s life had some entertainment value, they were nevertheless matters of public interest and therefore constituted “news” under the law. Accordingly, the author’s sources were deemed to be protected from discovery.

The case therefore marks a notable expansion of the privilege generally aimed at, and for the benefit of news entities, to the authors of entertainment-related books. The New York law defines a professional journalist as “a person who is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public. . .” In Trump, the Court specifically states that it “regard[s] an author who obtains news in confidence for dissemination to the public through the medium of a published book as fitting within this definitional phrase.”

It will be interesting to see if, and how, this case, and its expansive definition of a “professional journalist,” may be utilized in looking to extend protections of the Shield Law to bloggers and Internet posters who may claim to be disseminating “news” to the public. In fact, there is proposed legislation pending in the New York legislation that seeks to address this very question. The pending legislation seeks to modify the New York Shield Law to include in the definition of a “professional journalist” those who perform such services for a “web log.” For purposes of this bill, a “web log” is defined as “a website or webpage that contains an online journal containing news, comments and offers hyperlinks provided by the professional journalist or newscaster.”

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

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

Fair Report Privilege: 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.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com