3:15pm PT by Eriq Gardner
Appeals Court: Producer Likely to Win Defamation Lawsuit Against TheWrap
A California appeals court has revived a defamation lawsuit against TheWrap over its reporting on the documentary Revelations of the Mayans 2012 and Beyond.
The doc was scheduled to be made by Raul Julia-Levy -- who professes to be the son of actor Raul Julia, best known for playing Gomez in The Addams Family films of the 1990s. The executive producer on the film was Elizabeth Thieriot. Much intrigue followed the documentary thanks to touted bombshells that would connect the Mayans to extraterrestrials and prophesies including that 75 percent of Earth's population would die in the next two decades.
In the end, the film became most notable for a feud between Julia-Levy and Thieriot. After the film stopped production, the two became ensconced in a legal battle that resulted in an arbitrator determining that Julia-Levy had breached contract and committed fraud.
Before the arbitrator handed down the ruling, TheWrap looked into the fight and reported that Thieriot was being accused of fleeing with film footage. The entertainment news site also pointed to documents that purportedly showed she had filmed without a valid permit on federal ground in Mexico.
Thieriot filed a $1 million defamation claim, calling the accusations false and stating that the documents and the article were based solely on Julia-Levy's word.
TheWrap was able to prevail at the lower court by exploiting California's anti-SLAPP statute, which provides an early recourse for those whose First Amendment rights are threatened via legal action. The trial judge rejected the lawsuit on the basis that the story wasn't false insofar as it was merely repeating accusations by Julia-Levy.
On Tuesday, California appellate Judge Thomas Willhite reversed the decision based on an analysis of why Thieriot is likely to prevail in her lawsuit. Here's the full opinion.
First, there's the issue of falsity.
Judge Willhite applies a California common law rule that holds "one who republishes a defamatory statement is deemed thereby to have adopted it and so may be held liable, together with the person who originated the statement, for resulting injury to the reputation of the defamation victim."
In other words, simply attributing false statements to a source isn't a shield against defamation.
There is an exception to that rule when reporters base statements on privileged information such as judicial and legislative proceedings and anything said in the course thereof.
In defense of Thieriot's lawsuit, TheWrap attempted to point to Julia-Levy presenting criminal charges to the Mexican government to institute proceedings against Thieriot.
Judge Willhite says that's not enough because the California statute only "protects reports of such charges only when a warrant has been issued, and there is no evidence that a warrant was issued in this instance" and further that "Thieriot presented evidence that the article was not a 'fair and true report' of the investigation, because the article stated that Thieriot was ordered 'to appear and turn over the hard drives and towers,' and that she was told not to leave Mexico, but Thieriot’s evidence shows that no such orders were made."
Then, there's the issue of malice.
"In this case, Thieriot presented evidence that defendants relied upon a source -- their only source -- known to be unreliable," says the ruling. "Indeed, it is not disputed that defendants were aware that prosecutors from the Los Angeles District Attorney’s Office had 'filed a 3-inch-thick document [in a different, high-profile, case] assailing the credibility' of Julia-Levy, and contended that Julia-Levy 'had a history of making false statements to police and in legal filings.'"
Should TheWrap have been careful to trust a source who has been called an "imposter" by others?
Steve Pond, the article's author, contacted Larry Stein, Thieriot's attorney, to get the producer's side. Stein said he told Pond that he had recently been retained and would provide Pond with accurate facts within a day or two after speaking to his client. The lawyer believed that the article wouldn't be published until then, but it went up on the website the following morning.
The appeals court judge cites this as well as other things like the reliance on documents handed over directly from Julia-Levy to conclude that "a reasonable trier of fact could find that defendants' acceptance of Julia-Levy’s claims was reckless in light of the 'obvious reasons to doubt [his] veracity' and defendants' 'purposeful avoidance of the truth.' "
Judge Willhite adds all of these factors together. He writes, "We conclude Thieriot presented sufficient evidence to show a probability of prevailing."
Frank Broccolo, the Sidley Austin attorney representing TheWrap, says he is disappointed in the ruling and considering taking it to the California Supreme Court. He stresses the analysis won't be binding on further proceedings in the ongoing defamation lawsuit.
In a statement, Sharon Waxman, CEO and editor-in-chief of TheWrap, said: "I am truly disturbed by this ruling by the California appeals court because of the chilling effect it could have on all news media going about the business of news gathering on a daily basis. In this instance, The Wrap reached out repeatedly to representatives for Elizabeth Thierot during the reporting of the article in question. The idea that a news organization might be subject to the whims of a wealthy individual who has the means to intimidate them through the legal process because they do not like what is being written is a dangerous one for the functioning of a free and independent news media. It seems to us exactly what the anti-SLAPP statue is meant to prevent."