In dossier lawsuit, BuzzFeed’s ‘fair-report’ defense survives

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BUZZFEED STRENGTHENED ITS LEGAL POSITION this week against Russian entrepreneur Aleksej Gubarev, who is suing the website for publishing the infamous Trump dossier. A federal judge ruled Monday that New York’s fair-report privilege, invoked by BuzzFeed as a defense, remains available to the site. The decision appears to be only the second of its kind in the country, and addresses how news organizations can use a fair-report defense so long as they hyperlink to source material and other reporting in a particular way.

The ruling is significant in our current cultural moment. The fair-report privilege, on the books in dozens of states, encourages the press to scrutinize government activities through accurate reporting on them. It allows a news organization to cover such activities without first having to prove the truth of everything said in official proceedings and documents. The BuzzFeed case sheds light on how the privilege works in the digital journalism environment.

ICYMI: Why BuzzFeed was right to publish Trump-Russia files

So what happened, exactly?

Gubarev filed a defamation complaint against BuzzFeed in February 2017, six weeks after the site published a story that included the 35-page dossier prepared by former British spy Christopher Steele. The dossier detailed Russian efforts, some unsubstantiated, to help Trump in the 2016 presidential election. Gubarev appears at the end of the dossier, in an allegation that his web-hosting companies had used “botnets and porn traffic to transmit viruses, plant bugs, steal data and ‘conduct altering operations’ against the Democratic party leadership.” Gubarev denied the allegations and sued BuzzFeed for publishing them.

BuzzFeed has asserted various defenses, including that its story is protected by the fair-report privilege and the neutral-report privilege. Gubarev disputed the availability of those defenses last fall and filed a motion to that effect.

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The fair-report privilege is codified in a New York statute that reads, in part:

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, or for any heading of the report which is a fair and true headnote of the statement published.

The statute’s purpose is to protect stories about official proceedings “made in the public interest,” on the theory that the press, as the court put it, “acts as the agent of the public, gathering and compiling diffuse information in the public domain” about government actions. The big issue is how to define “official proceeding,” whether the government’s actions around the dossier qualify, and, if so, whether the BuzzFeed story is sufficiently related to those actions.

Although the BuzzFeed story’s text did not highlight the briefings or investigation, the court noted that the story linked to a CNN report…and held that hyperlinked content is sufficient to inform a reader of an ongoing proceeding, if the hyperlink is conspicuous.

New York courts have interpreted “official proceeding” broadly; the legal test is whether a story “concerns actions taken by a person officially empowered to do so.” But there are two key limitations. First, as the court held, “the ordinary … reader must be able to determine from the publication itself that the publication is reporting on a proceeding.” That is, whether BuzzFeed readers are able to understand that the government has undertaken official action around the dossier. Second, the proceeding must be actually underway at the time of publication.

Gubarev argued that no dossier-related proceeding was underway when BuzzFeed published its story, and, in the alternative, he argued that an ordinary reader would not have understood from the story that the dossier was the subject of a proceeding. The court disagreed, observing that the dossier had circulated at the government’s highest levels, that the president and president-elect were briefed about it by four US intelligence directors, that two senators received and sent it to the FBI, and that the FBI was investigating the allegations.

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The court reasoned that the intelligence briefings and FBI investigation qualified as “official action taken by those empowered to do so.” Although the BuzzFeed story’s text did not highlight the briefings or investigation, the court noted that the story linked to a CNN report about those very things. Following the only other case on point, from the Supreme Court of Nevada, the court held that hyperlinked content is sufficient to inform a reader of an ongoing proceeding, if the hyperlink is conspicuous.

Quoting from the Nevada opinion, the court reasoned that “the hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source and the hyperlink instantaneously permits the reader to verify an electronic article’s claims.” And, citing CJR stories about “modern journalistic principles and the way information is consumed in the digital age,” the court concluded that BuzzFeed had conspicuously hyperlinked the CNN story:

It appears in the body of the Article, within the words “CNN reported,” which are written in blue. Thus, when BuzzFeed published the Dossier, it explained (via the hyperlink) that the Dossier was the subject of official actions in the form of classified briefings by four intelligence directors to the President and President-elect, and an FBI investigation.

Thus, the court said, the fair-report privilege remained available for BuzzFeed to assert as the case moves forward.

However, the court ruled that the neutral-report privilege is not available. Such a privilege normally applies when the press (1) publishes an accurate and disinterested report (2) of serious charges against a public figure (3) by a responsible and prominent organization (4) without endorsing the charges. New York law does not recognize that privilege, and the court said it was unavailable under the federal constitution.

Related: Trump berated a CNN reporter, and fellow journalists missed an opportunity

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.