“The question of whether a publication is privileged under the fair report privilege is generally a question of law, particularly where there is no dispute about the content of the document on which the publication is based.”
How later courts described this case
- “The question of whether a publication is privileged under the fair report privilege is generally a question of law, particularly where there is no dispute about the content of the document on which the publication is based.”
Written by the judges who cited it.
The opinion
WOLFSON, J., concurs.
JUSTICE CAHILL, specially concurring:
I concur with the disposition of this case, but I disagree with the majority’s application of the fair reporting privilege to Start Magazine’s January 2003 article headline “Conspiracy of a Shakedown.” There is nothing in the text of the headline that would leave the reader with an impression that the underlying article reports on a complaint alleging unfair business practices and conspiracy. Without reference to the official proceeding, the reader is left with only one conclusion: plaintiffs entered into an illegal conspiracy. The point is made by comment f to section 611 of the Restatement (Second) of Torts. Comment f reads:
“Not only must the report be accurate, but it must be fair. *** [Although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it, as for example *** the use of a defamatory headline in a newspaper report, qualification of which is found only in the text of the article.” (Emphasis added.) Restatement (Second) of Torts § 611, Comment f, at 300-01 (1977).
The headline in this case is known as a “catcher” or “eye-stopper” in the media trade. Though sometimes misleading, such headlines carry the reputational weight, for whatever it is worth, of the media outlet. That is why the headline in this case, if run in a newspaper or magazine with no axe to grind, would have read “Conspiracy of a Shakedown, Complaint Alleges.” It is of little solace to plaintiffs that their names are not identified in the headline or that the reader later learns that the allegation comes from a privileged legal document. The reputation of the media source is hound to the “eye-stopper.”
To the extent the majority finds that the “Conspiracy of a Shakedown” headline is the type of reporting that section 611 of the Restatement protects, I respectfully disagree. I would have reversed the trial court’s finding that the headline is privileged under section 611 of the Restatement. I see no reason in this case to decide whether actual malice defeats the fair reporting privilege.