BuzzFeed Allowed Key Defense in Russian's Defamation Suit Over Trump Dossier

Ben Smith - BuzzFeed -Publicity - H 2018
Courtesy of BuzzFeed

In its continuing fight against a Russian tech entrepreneur who alleges being defamed by the publication of the infamous Trump dossier, BuzzFeed has scored an important ruling in Florida court that may ultimately immunize the news site from liability.

Aleksej Gubarev is suing BuzzFeed and editor Ben Smith for publishing the entire Trump dossier in January 2017, just days before Donald Trump became president of the United States. Although the spy report prepared by former British spy Christopher Steele gained most attention for its allegations that Trump's campaign coordinated with Russians and its salacious details about Trump's supposed romps with prostitutes, Gubarev is particularly upset by the portion of the dossier that suggests his firm used "botnets and porn traffic" to conduct cyber operations against Democratic Party leadership.

One of the affirmative defenses raised by BuzzFeed in reaction to Gubarev's lawsuit is that the news site has what's called a "Fair Report Privilege," referring to a doctrine that allows journalists to report on government activity without having to verify the truth of what's in goverment documents and proceedings.

After deciding to analyze the issue under the law of New York rather than Florida, U.S. District Court Judge Ursula Ungaro examines whether the Trump dossier actually had a relationship to any official proceeding at the time it was published.

Ungaro notes that the plaintiffs take a narrow view of "official proceeding," arguing there has to be an an "actual investigation" while BuzzFeed argues that an official proceeding can occur whenever persons empowered to take actions make efforts to do so.

The judge agrees with BuzzFeed but then says the protection is only available if an ordinary reader of the article would have concluded there was a classified briefing about what was in the dossier or an FBI investigation concerning the truth of the dossier's allegations.

The BuzzFeed article in question didn't address this other than by hyperlinking to a CNN article that described confidential briefings.

The judge asks, "The question then is: would an ordinary reader of the Article conclude that the dossier was subject to these official actions when these official actions are mentioned only in the hyperlinked CNN article?"

Ungaro writes there's not much case law on the topic. But she points to one decision from the Supreme Court of Nevada and rules that "BuzzFeed can satisfy the fair report privilege by conspicuously hyperlinking to the CNN article."

"The hyperlink here is conspicious," she continues. "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 investigaiton."

Read the judge's decision in full here.

Gubarev argued that even if there was an official action, it wouldn't matter unless the specific allegations directed his way published in the dossier were tied to this government proceeding. But Ungaro responds that the cyber-operations scheme certainly fits into what was briefed by government officials, adding, "Regardless, it would undermine the privilege to require that one who reports on official action tie every specific allegation in the report to a specific instance of official action."

"For these reasons, the Court cannot conclude as a matter of law that the Article is other than a fair and true report of an official proceeding," Ungaro continues. "This does not dispose of the case, however, because application turns on whether facts essential to its application are indisputed. At these stage, the Court takes as true that the official actions described in the CNN article (the classified briefings and FBI investigation) actually occurred. If discovery reveals that they did not, then there was, in fact, no official action."

On the other hand, if classified briefings did occur as others have confirmed since CNN's initial report, BuzzFeed seems to be in strong position to prevail in this case.