Our ‘Need to Know’ series returns — articles featuring the perspectives of professionals on various issues impacting the non-fiction and unscripted production landscape, designed to give you the information you need to know in an increasingly complex business environment. In this edition, we hear from Michelle Lamardo, an associate with Reavis Page Jump LLP (RPJ), who discusses a recent defamation case and its potential to impact the use of archival materials in non-fiction production.
It’s every producer’s worst nightmare.
You’ve found the perfect true crime story, researched the facts, and sourced the pièce de résistance — the mug shot of the perpetrator. You’ve delivered the episode and mere days after it airs, you receive a ping from the network. Apparently that mug shot was for the wrong John Smith. Now this John Smith has a serious bone to pick with you and a potential action for defamation per se because you just spent 42 minutes tying him to a crime he didn’t commit…
Or does he? A recent decision from New York may be just what the doctor ordered to quell those nightmares.
In November 2020, the New York legislature adopted amendments to its anti-SLAPP (strategic lawsuits against public participation) law, including modifying New York Civil Rights Law §76-a, to broaden the definition of an action involving public petition and participation. Under the amended law, “an ‘action involving public petition and participation’ is a claim based upon… lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest [which] shall be construed broadly, and shall mean any subject other than a purely private matter. [Further,]… damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false.”
The New York Supreme Court had the opportunity to apply the amended law in a defamation claim brought by David Sackler (nope, not that David Sackler) against the New York Post. In reporting on the other Sackler family’s role in the current opioid epidemic in America through the family business, Purdue Pharma, the Post used a picture of the wrong guy — a faux pas for sure, but fortunately not enough for the court to find that the Post had defamed this David Sackler.
The crux of Sackler’s argument was that the Post “‘did no research, insufficient research, or research that was not reasonably calculated to determine’ if the David Sackler in the photographs was the David Sackler of Purdue Pharma.” But the court concluded that reporting on the opioid epidemic was inherently a matter involving public petition and participation, thus triggering the requirement under NYCRL §76-a that Sackler establish by “clear and convincing evidence” that the Post acted with “knowledge” that the photograph it used was of the wrong David Sackler, or that the Post‘s conduct was tantamount to “reckless disregard” of the truth or falsity of the communication.
It is easy to understand what the legislature means when they speak of “knowledge.” If your researcher knows that she is in possession of the wrong John Smith’s photograph, you should absolutely not use that to illustrate your story about a different John Smith. Duh.
But practically speaking, what on Earth does it mean to recklessly disregard whether something was false and how do you prepare your team to not do that? Well, as the court reminded us in Sackler, “it is well settled that a ‘failure to investigate will not alone support a finding of actual malice’ and that ‘[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubt as to the truth of his publication.’”
“Reckless disregard” means more than sloppy work product and as the court concluded, “a failure to adequately research whether the published photographs were of the ‘correct’ [individual] does not, as a matter of law, constitute actual malice.”
Sure, given enough time and resources it is possible to verify with 100% certainty that your picture is of the right John Smith, but the decision in Sackler is confirmation that reasonable and good faith efforts — not perfection — are enough. A researcher on a true crime show is one of the many thankless jobs in reality television production and mistakes happen. So tell your teams to continue to do their due diligence, definitely do not ignore any signs that your information may be incorrect, and then put it to bed.
This article is provided for general information only and may not be relied upon as legal advice.
Michelle Lamardo is an associate with RPJ, practicing in the fields of entertainment and media, intellectual property and employment law. She has worked on numerous television series and is well versed in all aspects of television production, from development and rights acquisition to talent, production and broadcaster agreements, to production legal and pre-publication review.
Main image photo courtesy Wally Gobetz/Flickr