On December 19, 2018, U.S. District Florida Judge Ursula Ungaro ended Russian tech executive Aleksej Gubarev's defamation suit against BuzzFeed, ruling the website's publication of a dossier alleging ties between Russia and President Trump is protected by the fair reporting privilege.
Judge Ungaro granted BuzzFeed's motion for summary judgment after determining that the publication had satisfied its burden under the fair reporting privilege- which protects journalists reporting on official proceedings- of showing that the dossier was subject to official action by the government. She explained that the average reader would have concluded that the dossier was subject to official action because the BuzzFeed story about the dossier included a blue hyperlink to a CNN article that described the intelligence briefings to the outgoing and incoming presidents (then-president Barrack Obama and now-President Trump). However, Evan Fray-Witzer, Gubarev's attorney, said his client disagrees that the hyperlink was enough for the average reader to believe that BuzzFeed was reporting on an official action. Moreover, he argued that nothing in the court's ruling suggests that the allegations against Gubarev or his companies were true.
Gubarev argued that in order for BuzzFeed to prevail on the fair reporting privilege defense, BuzzFeed needed to show the particular statements about him and his companies- included in Report 166, the last of the 17 memoranda that make up the dossier- were all subject to “official proceedings.” Instead, the Judge agreed with BuzzFeed that New York law, which applies in this case, does not require that level of “granularity.”
Judge Ungaro explained, “To go line-by-line to determine if official action existed with respect to each statement in Report 166 would not impose on BuzzFeed a duty to faithfully recount official proceedings, but instead, would impose on BuzzFeed a duty to investigate extensively the allegations of the dossier and to determine whether the government was investigating each separate allegation…Defamation law does not impose that requirement on the press.” The judge added that this type of line-by-line review would curtail the scope of the privilege and restrict the press' ability to serve its basic function.
Gubarev, who is the CEO of XBT Holding SA, an internet hosting and web development company based in Luxembourg, filed the defamation suit against BuzzFeed and Editor-in-Chief Ben Smith in February 2017, shortly after the publication of the 35-page dossier authored by former British intelligence officer Christopher Steele.
His complaint centered on a portion at the end of the dossier asserting that XBT and Florida-based subsidiary Webzilla had been transmitting viruses, planting bugs, stealing data and generally conducting “altering operations” against the Democratic Party's leadership. According to the complaint, the dossier mentioned Gubarev specifically, calling him one of the “significant players” in the operations.
BuzzFeed stated, “As we have said from the start, a document that had been circulating at the highest levels of government, under active investigation by the FBI, and briefed to two successive presidents, is clearly the subject of ‘official action'…Moreover, its publication has contributed to the American people's understanding of what is happening in their country and their government.”
Judge Ungaro's decision came one day after she ruled that Gubarev is not a public figure which increases BuzzFeed's obligations in connection with its defense, because there is a higher standard a plaintiff must meet when he is a public figure for the purposes of the defamation suit.
Gubarev and his companies are represented by Evan Fray-Witzer of Ciampa Fray-Witzer LLP, Brady J. Cobb of Cobb Eddy PLLC, and Valentin D. Gurvits and Matthew Shayefar of Boston Law Group PC.
BuzzFeed is represented by Katherine M. Bolger, Adam Lazier and Nathan Siegel of Davis Wright Tremaine LLP, and Roy Black and Jared Lopez of Black Srebnick Kornspan & Stumpf PA.
The case is Gubarev et al. v. BuzzFeed Inc. et al., case number 0:17-cv-60426, in the U.S. District Court for the Southern District of Florida.
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