In Virginia, the right of the media to report freely and fairly on the operations of the government is sacrosanct. Reporters and news organizations that report on government activities are shielded from defamation claims by a “fair report privilege” that applies so long as the publication is a “fair and substantially correct statement of the transcript of the record.” (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). The privilege protects “press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993)). Everyone has a right of access to public records, and the fair report privilege makes it easier for the media to communicate the information contained therein to the public so that the government can be held accountable.
Some courts view the fair report privilege or “reporter’s privilege” as an exception to the republication rule. Normally, a person who repeats a defamatory statement is liable for republishing it, just as if he or she were the original speaker. Where a reporter repeats a defamatory statement made at a proceeding covered by the fair report privilege, however, no republication liability will attach provided the report is a fair characterization of what was originally said. If a media account of a government proceeding is fair and accurate, the publisher will be protected even if statements made at the proceeding and repeated in the publication were false and defamatory.
The fair report privilege seems to come up more frequently in federal court than in state court. Earlier this month, the Fourth Circuit issued an opinion that laid out the current state of the law in this area. The case is Fidelis Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC. Here’s what happened, according to the facts stated in the opinion:
Fidelis Agbapuruonwu immigrated to the United States from Nigeria, went to law school, and got a prestigious, high-paying job as an associate attorney at the law firm of Mayer Brown. After working at the firm for five years, he left to start his own business. While Agbapuruonwu was bringing in the Big Bucks, his wife, Helen Agbapuruonwu, was allegedly committing welfare fraud. Helen was arrested in Arlington County and charged with collecting more than $100,000 in welfare benefits. No charges were brought against Mr. Agbapuruonwu.
Local NBC affiliate NBC4 Washington did a story about the arrest (embedded below). The news anchors introduced the segment as “one of the biggest welfare fraud investigations ever in Arlington County” and described the focus of the investigation as “a mother of four, whose husband was a D.C. attorney making more than a million dollars last year.” In the story, the field reporter states that according to “courtroom notes” obtained by NBC4, Mr. Agbapuruonwu “made $1.5 million last year” and “is believed to have fled the country and is somewhere in Africa.” Mr. Agbapuruonwu’s smiling face is shown on the screen.
Apparently, Mr. Agbapuruonwu did not make $1.5 million the previous year, had not fled the country, and was not in Africa. He did not appreciate his photo being shown to a worldwide audience in connection with an alleged crime he had not been charged with. He sued for defamation, arguing that although NBC4 did not state expressly that he was involved in the welfare fraud, it certainly implied such was the case.
The lawsuit was not successful. The trial court found that NBC was protected by the fair report privilege, and the Fourth Circuit affirmed that finding on appeal.
First of all, the statements at issue were taken nearly verbatim from notes written in the court file by the magistrate who presided over Helen Agbapuruonwu’s arraignment. The magistrate had written the following:
[T]otal alleged [f]raud is 100K + over 5 years. Husband[’]s business grossed over [$]1.5 million last year. Husband is believed to have fled country and is somewhere in Africa. He is also a D.C. lawyer.
The Fourth Circuit agreed with the trial court’s findings that the fair report privilege “immunizes publishers from liability for articles that accurately describe or summarize the contents of an official statement or report” and applies “even if it turns out that the underlying report is incorrect or it contains falsehoods.” It noted that the fair report privilege applies “so long as the report is accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993)). Selective quotation from a government report will be a fair abridgement when it is a “substantially correct” account.
Here, NBC4’s story was substantially correct in that it quoted directly from the magistrate’s notes. It was immaterial to NBC4’s liability that the magistrate’s notes may have been factually erroneous. Regardless of how much money Mr. Agbapuruonwu may have made the previous year, the magistrate had written that his business grossed over $1.5 million, and NBC4 fairly reported on what that magistrate had written in the court file. Therefore, the fair report privilege applied. This meant that the claim of implied defamation could not “rest on any purportedly defamatory implication conveyed by the statements in the Magistrate’s Notes,” so the defamation claim was dismissed.
Mr. Agbapuruonwu had also argued alternatively that NBC4 lost or abused the privilege by acting with malice. The Fourth Circuit noted that “whether a showing of actual malice can vitiate the fair report privilege seems to be an unsettled question under Virginia law,” but ultimately held that it didn’t matter because Mr. Agbapuruonwu had not alleged sufficient facts to demonstrate plausibly that NBC4 had acted with malice. There was no reason to believe that NBC4 knew the magistrate’s notes were false or that it had any reason to doubt what the magistrate had written.
Finally, towards the end of the opinion, the Fourth Circuit made a comment reinforcing the notion that in cases of defamation by implication, what matters is whether a defamatory implication can be inferred by a reasonable reader or listener, not whether certain fringe groups may draw their own unreasonable conclusions:
Although we are sensitive to the Report’s subsequent appropriation by several pundits and media outlets espousing anti-immigrant sentiments, those malicious reactions to the Report do not expand what it is reasonably capable of implying.
For more on that topic, see this post.