Recent Decisions Signal Demise of the Gross Irresponsibility Standard in New York
Since the New York Court of Appeals’ 1975 decision in Chapadeau v. Utica Observer-Dispatch, 38 N.Y. 2d 196 (N.Y. Ct. App. 1975), liability for a defamatory publication in New York has been governed by three distinct fault standards. Where the publication concerns a private person and the matter is a private concern, the plaintiff can succeed upon a showing that the defendant acted with negligence. On the other side of the spectrum is where the publication concerns a public figure. In those circumstances, regardless of whether the matter is a private or public concern, the plaintiff can only succeed with clear and convincing evidence that the defendant acted with actual malice. Chapadeau established a third fault standard for those situations where the publication concerns a private person and the subject matter falls “arguably within the sphere of legitimate public concern.” In such cases, a plaintiff is required to show the defendant acted with gross irresponsibility. A somewhat amorphous standard, the Chapadeau Court defined it as conduct taken “without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties [.]” 38 N.Y. 2d at 199. While certainly a higher-burden then mere negligence, such plaintiffs were relieved of the more onerous actual malice standard and the evidentiary issues that accompany it. That has all seemingly changed with the way a number of courts have recently interpreted the 2020 amendments to New York’s anti-SLAPP law, making it even more difficult for a plaintiff to succeed in a defamation suit involving a matter of public concern regardless of whether or not the plaintiff is a private person.
2020 Amendments to New York’s Anti-SLAPP Law
Although home to some of the world’s most prominent media and news organizations, until recently, New York’s anti-SLAPP law, enacted in 2008, had been narrowly limited to litigation arising from a public application or permit, often in the real estate development context. In an effort to give the law more teeth, on July 22, 2020, the New York State Senate and Assembly passed legislation that expanded First Amendment protections under the anti-SLAPP law, extending its actual malice standard beyond actions “brought by a public applicant or permittee,” to apply to any action based on a “communication in a . . . public forum in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.” Civil Rights Law §76-a(1)(a)(1)-(2). “Public interest” is defined as “any subject other than a purely private matter” and “shall be construed broadly.” Civil Rights Law §76-a(1)(d).
A pair of recent decisions from the United States District Court for the Eastern District of New York and the New York Supreme Court suggest the Legislature’s efforts to expand and strengthen New York’s anti-SLAPP protections is working, in particular by allowing defendants to avail themselves of the actual malice standard in cases traditionally governed by gross irresponsibility.
Recent Cases Applying New York’s Anti-SLAPP Amendments to Defamation Actions
While these amendments do not appear to supplant the negligence fault standard for defamation liability, the expansion of the law’s protections to seemingly any communication about an issue of “public interest” suggests that the gross irresponsibility standard is a thing of the past.
In the matter Coleman v. Grand, 1:18-cv-05663-ENV-RLM (E.D.N.Y. Feb. 2021), the defendant used the recently enacted statute to defeat a libel claim brought by the plaintiff who she accused of pressuring her into a sexual relationship. Finding that the plaintiff – although a prominent jazz musician – was not a public figure, but that the allegations in the defendant’s emails fell “arguably within the sphere of legitimate public concern”, the Honorable Eric N. Vitaliano acknowledged that the gross irresponsibility level of fault would traditionally apply. However, in giving retroactive effect to the anti-SLAPP law’s amendments, Judge Vitaliano determined the plaintiff was required to prove the defendant acted with actual malice. Finding that standard had not been met, Judge Vitaliano dismissed the plaintiff’s libel claim.
More recently, on March 9, 2021, New York Supreme Court Judge W. Franc Perry dismissed a libel claim asserted by David Sackler in Sackler v. American Broadcasting Companies, Inc., et al. Index No. 155513/2019. In that case, The New York Post was sued for reporting Purdue Pharma CEO David Sackler’s involvement in the opioid epidemic. There was one problem, however: the photo that the newspaper and other media defendants published was of the wrong David Sackler. The man pictured was a consultant in the health and wellness industry and was in no way tied to Purdue Pharma or otherwise involved in the Opioid pandemic. Also giving the anti-SLAPP amendments retroactive effect, Judge Perry granted The Post’s CPLR § 3211(a)(7) motion, finding that Sackler had failed to establish by clear and convincing evidence that the newspaper acted with actual malice. In applying the law’s actual malice standard, Judge Perry observed that “nothing in the text of the amended statute indicates that the Legislature intended for the statute to only apply to defamation cases involving . . . public figures.”
Coleman and Sackler illustrate what a boon the amendments to New York’s anti-SLAPP law have been for defendants, and at least right now, suggest the demise of the sometimes-abstruse gross irresponsibility fault standard.