The California Court of Appeal issued a recent ruling with interesting ramifications for media, entertainment, and First Amendment practitioners. The decision by the Second District Court of Appeal, though unpublished, has further shown how California courts will determine media companies’ liability for defamation, specifically in situations where web publishers host articles written by independent contractors.
The decision arose from a remarkable set of facts. Plaintiff Andrew Keegan Heying, better known as Andrew Keegan, an actor famous for his roles in the television series Party of Five and in the movies 10 Things I Hate About You and Independence Day, co-founded his own religion called the Full Circle Church in Venice, California. In May, 2015, the California Department of Alcoholic Beverage Control conducted a raid at the Full Circle Church and issued a citation for selling alcohol without a license due to the sale of kombucha – a fermented tea with a very low level of alcohol– at an event being held at the church. Mr. Heying was not present at the time of the raid and was not arrested.
On May 15, 2015, Fox News posted an article online about the incident with the headline “Andrew Keegan busted for selling kombucha at his New Age temple.” The same day, a four paragraph article was published on Examiner.com with the headline “Andrew Keegan arrested for selling illegal kombucha at a New Age Temple.” The Examiner article quoted from and linked to the Fox News report. Examiner.com was a website that hosted articles written by “examiners” – independent contractors from across the country who were eligible to receive payment based upon the number of views their articles received. The publication in question was written by Mandy Robinson, an “examiner” from Oklahoma City.
Mr. Heying sued Examiner.com and related companies for defamation, invasion of privacy, negligence and misappropriation under California common law and Civil Code § 3344. Notably, Ms. Robinson, the article’s author, was not named as a defendant in the lawsuit. The defendants filed a motion to strike the complaint as a strategic lawsuit against public participation under California’s anti-SLAPP statute. The Los Angeles county trial court granted defendants’ anti-SLAPP motion on the grounds that Mr. Heying, a public figure, could not produce clear and convincing evidence that the Examiner.com article was published with actual malice, as required by the First Amendment. Mr. Heying appealed.
The Court of Appeal held that the anti-SLAPP statute applied because the Examiner.com post, made on a public website, appeared on a “public forum” for purposes of the statute and because Mr. Heying and the Full Circle Church were in the “public eye” due both to Heying’s celebrity status and the fact that numerous articles had been written about Heying and his church in New York magazine and the Los Angeles times. Accordingly, the Court held that the Examiner.com article concerned a matter of public interest for purposes of the anti-SLAPP statute.
The Court further held that Mr. Heying could not establish a probability of prevailing on the merits of his claims and affirmed the dismissal of all defendants. The Court found that Ms. Robinson, the independent contractor who authored the post, did not act with actual malice because she reasonably relied on the Fox News report and understood the word “busted” in that report to mean “arrested.”
Mr. Heying argued that, notwithstanding the author’s intent, the Examiner.com business model allowed an inference of actual malice on behalf of defendants because independent contractors were allowed to publish articles directly on the website without any review or approval by the site’s owners. The Court of Appeal disagreed. The Court relied on the precedent set in Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688 (2007) and held that Mr. Heying was unable to produce “specific evidence” that defendants “routinely relied on biased sources, falsely represented they had done more investigation than they had, or, as a business practice, made statements with defamatory implication to achieve a preconceived result” as was required to find actual malice on behalf of a website owner. Notably, the Court further held that defendants’ failure to review the article before posting it did “not create an inference that defendants entertained serious doubts as to the truth of the publication or a high degree of awareness of probable falsity.”
Although unpublished, this decision reflects an interesting development in the law concerning publisher liability for hosting content provided by independent contractors. The case is Heying v. Anschutz Entertainment Group, et al., CA2/8, Case No. B276375.