4:46pm PT by Eriq Gardner
Appeals Court Narrows Lawsuit Brought by Duchess Fergie's Former Lover
Most of the claims arising from the News Corp phone hacking scandal are being adjudicated in the U.K. But there's at least one lawsuit over aggressive tabloid reporting — brought by American businessman John Bryan — that's taking place in California. On Tuesday, though, an appellate court significantly trimmed Bryan's claims.
Bryan gained notoriety in the British tabloid press in the 1990s thanks to his relationship with Sarah Ferguson, the Duchess of York, after her separation from Prince Andrew. In 1995, Bryan was living in Los Angeles when he received a call from a lawyer representing a Saudi billionaire interested in making an investment in a Las Vegas hotel project. A meeting was set up. But what Bryan didn't know at the time was that he met with individuals posing as the Saudi sheikh and a member of the entourage. Bryan would later allege that Rupert Murdoch's News Corp sent undercover reporters to L.A. to entrap him by encouraging him to procure cocaine and prostitutes.
On Oct. 8, 1995, News of the World had the headline: "Fergie's Ex in Vice and Drugs Shame."
No legal action would come until many years later, when News of the World and The Sun became embroiled in a scandal that centered on press tactics. In particular, News Corp publications suffered huge fallout when it was revealed that reporters had intercepted voicemails of unwitting subjects.
In 2014, BBC ran a program titled The Fake Sheikh Exposed, which chronicled what had happened. During the taping of the show, a reporter who had once posed as a member of the sheikh's entourage revealed to Bryan that he had secretly recorded their conversations during the meeting two decades earlier.
Bryan then sued, alleging News Corp and its subsidiaries had libeled him, invaded his privacy and had made an illegal recording.
News Corp subsequently brought a motion based on California's anti-SLAPP statute, meant to give recourse to those hauled into court for First Amendment activity on matters of public interest.
On Tuesday, a California appeals court reversed the trial court by determining that the libel and privacy claims weren't ripe.
Since the News of the World article ran all the way back in 1995, the statute of limitations ran out long before Bryan filed suit. But he argued that when BBC aired its show and displayed the article's headline, this constituted a republication, making his lawsuit timely.
Judge Kerry Bensinger rejects this contention by pointing to the single publication rule, which sets the statute of limitations period as beginning to run when a defamatory statement is first published. Bryan submitted that the BBC's airing of the headline fell within the reasonably foreseeable exception to the single publication rule, and while the trial court agreed, Bensinger and her colleagues don't.
"This is not an employment case where a terminated employee was compelled to disclose the defamatory statement to secure new employment," she writes. "Indeed, defendants did not do anything to compel the BBC to republish the article; the BBC did so on its own accord. Nor was the BBC’s use of the heading in 2014 the natural and probable consequence of the 1995 publication."
The judge continues, "Here, defendants played no role in the 2014 BBC Panorama republication of the original 1995 News of the World story. The Panorama story was not about Bryan. It was about Mahmood, and how, 'posing as a fake sheikh,' he 'delighted in exposing the secrets of the rich and famous.' It referred to the many people who had been 'sent to jail following his undercover stings.' It stated that after winning awards for his investigative journalism, he now 'stands accused of being a liar' following a criminal trial in which he was accused of entrapment and the defendant was acquitted... Any reference to the original 1995 News of the World story in 2014 was not a result of its publication in 1995, but rather was because of subsequent events which led to an investigation into Mahmood’s tactics."
Accordingly, for purposes of the SLAPP statute, Bryan can't demonstrate a likelihood of prevailing on the libel and privacy claims, but he is allowed to move forward on his claim over an illegal recording. Since Bryan presented evidence he didn't know that he had been secretly taped until filming of that BBC program, Bensinger writes that he "properly invokes the discovery rule to delay the accrual of the cause of action and the commencement of the statute of limitations. Importantly, Bryan does not allege any injury or damages related to the publication of the recorded information. Bryan’s cause of action is a 'pure' section 632 claim."
That said, Bryan's small victory is then limited by a determination he can only sue News Group Newspapers Limited, the then-owner of News of the World, and not the parent company of News Corp.
In an attempt to avoid this outcome, Bryan pointed to the wider phone hacking scandal and how Murdoch's News Corp allegedly controlled and took responsibility for its subsidiary. He submitted how 20th Century Fox — once apart of News Corp — created a management and standards committee to have oversight and take responsibility for all matters related to voicemail interception cases. And he submitted a copy of Murdoch's 2011 apology which stated, "The News of the World was in the business of holding others to account. It failed when it came to itself. We are sorry for the serious wrongdoing that occurred. We are deeply sorry for the hurt suffered by the individuals affected. We regret not acting faster to sort things out..."
With respect to the latter, Bensinger writes, "Rupert Murdoch’s 2011 apology is a public relations message; nothing more. The apology lacks any details concerning the Parent Corporations’ control over or interactions with News Group Newspapers Limited."