Libel Defendants Are on a Massive Win Streak in New York

Times Square on April 6, 2020 in New York City- near empty street - Getty-H 2020
Kena Betancur/Getty Images

Don't look now, but in the past few weeks, libel lawsuits are failing left and right in New York state. On Tuesday alone, The New York Times beat Donald Trump while The New York Post prevailed over a bad photo choice. The former suit got most of the attention, but it's the latter that provides the best example why the world's media capital is suddenly more hospitable — at least, legally — for media companies.

In this case, Rupert Murdoch's paper — along with ABC, HBO, Reuters and Hearst Magazines — were sued for reporting about David Sackler's involvement in the United States opioid epidemic through the company Purdue Pharma. The problem for these media companies was picturing the wrong David Sackler. This one, a consultant in the health and wellness industry rather than the executive whose company faced repercussions for its aggressive marketing of OxyContin, claimed a tarnished reputation through the photo error. Some of the other defendants settled. The New York Post did not.

After the case was filed in May 2019, something notable happened: New York passed an anti-SLAPP law to protect free speech from frivolous suits. The change was made in part to discourage bullying from the likes of Donald Trump and Harvey Weinstein.

But what about specific changes to libel law?

Well, for starters, there are now situations where private figures have to demonstrate actual malice to prevail. Formerly, these sorts of plaintiffs merely needed to show negligence on the publisher's part, but in cases involving the public interest — like, say, the nation's opioid epidemic — even non-famous individuals would have to show knowledge of falsity or reckless disregard of the truth.

According to New York Supreme Court Justice W. Franc Perry, Sackler can't meet the new SLAPP standard (which is also being applied retroactively).

"Here, the court finds that Plaintiff fails to establish by clear and convincing evidence that the Post published the photograph of him with actual malice," writes the judge. "Plaintiff's sole allegation is that the Post 'did no sufficient research, or research that was not reasonably calculated to determine' if the David Sackler in the photographs was the David Sackler of Purdue Pharma. However, it is well settled that a 'failure to investigate will not alone support a finding of actual malice.'"

The New York Post's win and the victory the same day by The New York Times aren't the only decisions showing the impact of the new SLAPP law in New York. On Feb. 26, for example, Maria Grand, an aspiring young saxophonist, used the recently enacted statute to beat a libel claim from Steven Coleman, a prominent jazz musician she accused of pressuring her into a sexual relationship. Other SLAPP decisions are pending.

Here's the full ruling in Sackler's suit against the Post: