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Maybe there’s a difference between fact and opinion. On Tuesday, Jennifer Shepard-Brookman, former senior producer of The View, learned this lesson the hard way in failing in her slander lawsuit against Rosie O’Donnell, a former co-host of the ABC daytime program.
The lawsuit stemmed from an editorial meeting in January 2015. In the course of the meeting, O’Donnell brought up the subject of leaks of sensitive information about The View to the media.
“The leaks are out of control this year,” responded Brookman.
“Really, you don’t think the leak is here?” retorted O’Donnell. “Hmm — that’s interesting. Then I would like to know how Radar Online managed to write an article that had word-for-word the conversation about the Beverly Johnson interview that happened on a telephone call including me and three other people.”
O’Donnell is said to have pointed to three producers in the room, including Brookman, who questioned, “Are you saying that one of us is the leak?”
“Maybe one of you told your teenage son, and he leaked it,” answered O’Donnell.
Some time later, another staffer went up to O’Donnell to tell her he was not the source of media leaks.
“I know it wasn’t you,” said O’Donnell. “I know it was Jennifer.”
Brookman, who was later suspended and then fired, sued O’Donnell for slandering her by blaming her as the source of the media leaks.
In a ruling yesterday, New York Supreme Court judge Shlomo Hagler dismissed the complaint.
Addressing what was spoken at the editorial meeting, the judge writes, “Here, the use of the wor[d] ‘maybe’ makes it clear that any reasonable listener would regard defendant’s statement as non-factual. At most, [O’Donnell’s] statement constitutes rhetorical hyperbole which cannot form the basis of a claim for defamation.”
Even if O’Donnell hadn’t qualified her statement with a “maybe,” she’d still be given a pass. That’s because when analyzing the follow-up conversation between O’Donnell and another staffer, Hagler says the conversation didn’t imply any undisclosed fact. Instead, based on a shared understanding of facts, O’Donnell offered a non-actionable opinion about the source of the leak.
And even if otherwise, the judge says Brookman’s defamation claim would still be barred by a “conditional or qualified privilege” over communications made by one person to another upon a subject in which both have an interest.
In the opinion (read in full here), Hagler writes, “Here, the subject communications were between co-workers in a work setting regarding issues in the workplace,” and further, Brookman failed to show O’Donnell was “motivated by common spite or ill will.”
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