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If truth is the best defense to a defamation claim, what happens when one news outlet accuses another of perpetuating fake news? Is it the burden of the defendant to show the truth of the reported falsity? Or is it on the plaintiff to demonstrate the falsity of the reported truth?
This mind-bender resulted in a summary judgment decision by a New York federal judge on Wednesday tasked with examining a story published by BuzzFeed on Aug. 24, 2015, headlined, “The King of Bullsh*t News.”
Michael Leidig’s Central European News, the subject of the piece, became the plaintiff in the case objecting to BuzzFeed‘s characterizations of a news service that covered such topics as a Justin Bieber ringtone saving a Russian fisherman from a bear attack and a Macedonian man who chopped his own penis off after his girlfriend told him it wasn’t big enough. Specifically, Leidig alleged that BuzzFeed falsely suggested he was in the business of “fake news” (before Donald Trump popularized that term), made up quotes from non-existent persons, failed to make corrections upon revelations of falsity, didn’t care whether stories injured people and so forth.
The lawsuit was filed in 2016, and BuzzFeed subsequently provided all the reasons why it failed the First Amendment test. U.S. District Court Judge Victor Marrero decided summary judgment was best to separate fact from fiction.
“BuzzFeed argues that Plaintiffs cannot show the falsity of the allegedly defamatory statements, and thus Plaintiffs’ claims must fail,” writes Marrero. “The Court agrees. In the face of repeated instances where BuzzFeed points to specific evidence supporting the truth of the Article, Plaintiffs’ sole rejoinder is that neither Leidig nor any CEN employee admitted to knowingly publishing ‘a fake news story’ or to ‘add[ing] phone quotations to a story.’ Although such bland cryptic claim[s] of falsity supported by the credibility of a witness might be sufficient to establish a proposition in other civil cases, the First Amendment demands more.”
The judge says that Leidig hasn’t provided evidence that BuzzFeed‘s statements about CEN stories are false and that as such, no jury could find them to be false. The judge isn’t impressed by Leidig’s strategy of using blanket denials and “painting with broad brush strokes” nor with presenting a moving target on what exactly was false and defamatory. Because Leidig can’t satisfy the falsity element of a libel claim, the judge doesn’t take up the alternative argument that BuzzFeed‘s statements lacked actual malice.
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