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IP/Entertainment Case Law Updates

Mackin v. Cosmos Broadcasting, Inc., et al.

The district court rejected the defendant television station’s argument that its investigative news reports were necessarily matters of public concern and denied defendants’ summary judgment motion relating to plaintiffs’ defamation and false light claims.

The defendants broadcast three television news reports as part of their “Troubleshooting” investigative reporting series. The reports focused on the sale of a house owned by one of the plaintiffs to a blind woman. The reports suggested that the plaintiffs took advantage of the purchaser’s blindness and sold her a house in poor condition.

The defendants moved for summary judgment, claiming that the news reports were matters of public concern, and that the plaintiffs had to prove actual malice, which they alleged plaintiffs had not done. The court disagreed, explaining that the reports were about a private transaction and not matters of public concern, and proof of actual malice was therefore not required.

To make out a prima facie case of defamation under Kentucky law, a plaintiff must prove the existence of (1) defamatory language, (2) about the plaintiff, (3) which is published, and (4) which causes injury to reputation. However, a plaintiff may not recover on a defamation claim regarding statements on matters of public concern “unless he proves that the statement was made with ‘actual malice’ - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). The Sixth Circuit has observed that “[s]peech is of ‘public concern’ if it involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” (citing Farhat v. Jopke, 370 F.3d 580 (6th Cir. 2004)). According to the district court, a court in the Sixth Circuit must consider (1) the point or focus of the speech in question and (2) whether the point relates to any matter of political, social, or other concern to the community.

Defendants argued that the “Troubleshooter” segments were designed as vehicles for consumer protection, and that the content of the broadcasts was primarily directed toward educating viewers about general problems confronted in the community, and that the individual transaction between the plaintiffs and the purchaser was merely used to illustrate these problems. The court disagreed, saying that “the broadcasts essentially amount to a report or expose about a private transaction between two people.... There is no evidence that Mackin serially engages in the selling of substandard homes to handicapped individuals, or that the area has experienced a rash of such sales. The sale of the home simply was not part of an ongoing public debate, dispute, or concern regarding these individuals or their interaction. Furthermore, the focus of the story was not the general lessons one might draw from Jackson’s experience, but rather the exposition of her interaction with Mackin.”

The court declined to adopt the defendants’ argument that because the focus of “Troubleshooter” segments is consumer protection issues, i.e. matters of public concern, then anything broadcast on a “Troubleshooter” segment is ipso facto a matter of public concern. “To adopt such a standard, however, would allow those charged with defamation to create their own defense by simply deciding to publish a story about an otherwise private matter, which seems to fly in the face of the Supreme Court’s refusal to endorse such a tactic.”

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