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Online Defamation - Fair Reporting Of Legal Proceedings - Internet Library of Law and Court Decisions - Updated May 13, 2008

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Court holds that the under the First Amendment and California Civil Code Section 47(d), a party is permitted to publish a ‘fair and true report’ of legal proceedings without  exposure to defamation claims.  Such a report, explained the Court, can contain factual errors and still retain the privilege afforded by Cal. Civil Code Section 47(d) provided it captures ‘the substance, the gist, the sting of the libelous charge.’  This privilege applies both the newspaper articles and to articles posted on the internet.  Finding that the reports at issue, while containing some factual errors, captured the substance and gist of the legal proceedings on which they reported, the California Court of Appeals affirmed the decision of the lower court, which granted defendant newspapers motion to strike plaintiffs’ complaint – which charged defendants with libel as a result of the publication of the articles at issue - under California’s anti-SLAPP statute.  In this case, the newspaper article at issue reported on a proceeding commenced by the Securities and Exchange Commission.  Said the Court:

[T]he First Amendment and Civil Code section 47 subdivision (d) permitted defendants to publish a ‘fair and true report’ of the legal proceedings.  The question thus becomes whether the newspaper articles and internet postings qualify as being fair and true.  If so, plaintiffs are unable to show a probability of prevailing and we must affirm the dismissal of the action.  As defendants point out, the ‘fair and true report’ requirement does not limit the privilege to statements which contain no errors.  Our Supreme Court recognized that ‘erroneous statement is inevitable in free debate and … must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’  Thus the publication concerning legal proceedings is privileged as long as the substance of the legal proceedings is described accurately.  “Under California law, a newspapers report is ‘fair and true’ if it captures ‘the substance, the gist, the sting of the libelous charge.’  The news article need not track verbatim the underlying proceeding.  Only if the deviation is of such a ‘substantial character’ that it ‘produces a different effect’ on the reader will the privilege be suspended.  New articles, in other words, need only convey the substance of the proceedings on which they report, as measured by their impact on the average reader. 

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