Shortly after publishing the now-infamous Steele dossier about President Trump’s alleged connections with Russia, BuzzFeed was sued for defamation by Aleksej Gubarev, a Russian tech entrepreneur based in Cypress.  The dossier claimed that Gubarev’s company XBT Holdings S.A., its subsidiary Webzilla, Inc., and affiliates played a significant role in hacking the Democratic Party leadership.  Dkt No. 388 at 2.  On December 19, 2018, Florida federal judge Ursula Ungaro granted BuzzFeed’s motion for summary judgment, finding that BuzzFeed had absolute immunity under the fair report privilege defense, and dismissed the case.  Gubarev has appealed the Court’s order.  The case is Aleksej Gubarev, et al., v. BuzzFeed, Inc., et al., No. 1:17-cv-60426-UU in the United Stated District Court for the Southern District of Florida.

Background Of The Dossier, The BuzzFeed Article, And The Lawsuit

The Steele dossier (“Dossier”) originated in fall 2015 when intelligence firm Fusion GPS was retained—first by a Republican, then by a law firm working for the Democratic National Committee—to conduct research on then-Presidential-candidate Donald Trump.  Dkt No. 388 (December 19 Order) at 3.  Fusion retained Orbis Business Intelligence Limited, which was founded by Christopher Steele, to investigate alleged business ties between Trump and Russian interests.  Id.  During Steele’s research, he received information that Russia was interfering in the 2016 election to support Trump and that Russia allegedly held compromising information about Trump.  Id. at 3-4.  U.S. government officials had received portions of the Dossier in 2016 and certain of Steele’s reports were used by both the FBI and Department of Justice at various points, including as part of a DOJ application to obtain and renew a FISA warrant to conduct surveillance on Carter Page, Trump’s former foreign policy advisor.  Id. at 4-6.  Numerous intelligence directors had also briefed then-President Obama and then-President-elect Trump about allegations in the Dossier.  Id. at 6-7.

BuzzFeed obtained the Dossier on December 29, 2016 and began investigating some of its allegations.  Id. at 7.  Meanwhile, on January 10, 2017, CNN reported on the existence of the Dossier, how it was prepared, the officials who had been briefed on it, and that the FBI was investigating its credibility.  Id.  The CNN article did not mention Gubarev.  Id. at 7-8.   After seeing the CNN article, and also on January 10, 2017, BuzzFeed published an article entitled These Reports Allege Trump Has Deep Ties to Russia, which included the Dossier itself.  Id. at 2.

As BuzzFeed noted, the Dossier is a compilation of memoranda (totaling seventeen reports) assembled by a former British intelligence officer at the request of then-candidate Trump’s political opponents.  Id.  The report at issue in this case—Report 166—stated that Gubarev and his companies had allegedly been engaging in bad acts against the Democratic Party leadership.  Id.  Gubarev alleged that the Dossier’s statements about him and his companies were false and that BuzzFeed never contacted him or his companies to determine if the allegations were true.  Id. at 3.

Notably, BuzzFeed’s article included a disclaimer that the Dossier contained various alleged facts that had not yet been verified or falsified, or which were unverifiable, and that the Dossier “is not just unconfirmed: It includes some clear errors.” Id. at 2.  The BuzzFeed article also included a hyperlink to the CNN article and an explanation that CNN had reported “that the two-page synopsis of the report was given to President Obama and Trump.”  Id. at 8.

The Nature Of The Fair Report Privilege

Although the lawsuit was pending in Florida federal court, after engaging in a choice-of-law analysis, the Gubarev Court applied New York law in deciding whether BuzzFeed could rely on the Fair Report Privilege.  See Dkt No. 171 (June 5 Order).  The Court’s June 5, 2018 order provides a more complete choice-of-law analysis but largely centers on the fact that the Fair Report Privilege is meant to protect speakers—rather than providing a remedy to potential plaintiffs—and, here, the decision to publish the Dossier was made at BuzzFeed’s New York offices.  Id. at 5-10.

Like many other states, New York applies a Fair Report Privilege that protects members of the press in reporting on proceedings that are “made in the public interest.”  Williams v. Williams, 23 N.Y.2d 592, 599 (N.Y. 1969).  New York codifies its Fair Report Privilege in Civil Rights section 74 (“Section 74”), which protects, among other things, the “publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding[.]” N.Y. Civ. Rights § 74.  Thus, to receive protection the publication must be fair and true and linked to an official proceeding.

New York courts also require the following two elements to be shown before the privilege will be applied:

  1. There must be more than a mere “overlap” between the subject matter of the report and the subject matter of the official proceeding, i.e., ordinary readers have to understand that the publication is reporting on that proceeding; and
  2. A formal proceeding must be underway at the time of the publication.

The Court Grants Summary Judgment In BuzzFeed’s Favor

In Gubarev, the BuzzFeed defendants took the position that their decision to publish the Dossier was protected under the Fair Report Privilege because the record demonstrated that (i) then-President Obama and then-President-elect Trump were briefed on the Dossier; and (ii) the FBI investigated the truth of the Dossier and Carter Page’s alleged connection to Russian intelligence.

The Gubarev Court answered a number of questions in ruling that BuzzFeed’s publication of the Dossier as part of its article was protected by the Fair Report Privilege:

  • Was an official proceeding concerning the Dossier underway when BuzzFeed published the article?

Yes.  The question was whether the government conduct constituted an “official proceeding.”  In reaching its conclusion, the Court rejected the Plaintiffs’ narrow interpretation of the term “official proceeding” to refer only to an “actual investigation.”  June 5 Order at 14-15.  Instead, the Court interpreted the phrase “official proceeding” to mean any official action, thereby encompassing any “actions taken by a person officially empowered to do so.”  Id.  The Court reasoned that a “confidential briefing to the President and the President-elect by the four most senior intelligence directors” as well as “an FBI investigation into the truth of the Dossier’s allegations” certainly met this criteria.  Id.

  • Would an ordinary reader have understood the Dossier was the subject of an official action?

Yes.  Though the BuzzFeed article itself did not give much detail about the official action, it included a hyperlink to the CNN article, which did describe the confidential briefings and which asserted that the FBI was investigating the truth of the Dossier’s allegations.  June 5 Order at 16-18.  The Court held that this sufficiently put readers of the BuzzFeed article on notice of the official actions.

In doing so, the Court looked to a prior decision by the Nevada Supreme Court addressing this very issue.  In Adelson, the Nevada court held that a hyperlink renders a report privileged as long as the hyperlink is conspicuous, reasoning that hyperlinks are the “twenty-first century equivalent of the footnote for purposes of attribution in defamation law[.]”  Adelson v. Harris, 402 P.3d 665, 669 (Nev. 2017) (internal quotations omitted).  June 5 Order at 16-17.

The Gubarev court viewed Adelson as being “aligned with modern journalistic principles and the way information is consumed in the digital age” and adopted its reasoning.  Id. at 17.  The Court ruled that BuzzFeed’s hyperlink to the CNN article was sufficiently conspicuous, as it was in the body of the BuzzFeed article and stated “CNN reports” in blue text.  Id. at 18; December 19 Order at 21-23.  The Court rejected the Plaintiffs’ argument that the hyperlink wasn’t conspicuous because it wasn’t underlined (yes, you read that correctly).  December 19 Order at 22.

  • Can Defendants claim the Fair Report Privilege’s protection when the record reveals that certain parts of the Dossier were subject to official action but does not reveal whether the specific allegations about Plaintiffs were subject to official action?

Yes.  As discussed above, the Dossier is a collection of seventeen reports, the last of which—Report 166—contained the allegedly defamatory statements regarding the Plaintiffs.  The evidentiary record did not clearly demonstrate whether Report 166 had been used in connection with the official actions in question.  Under these circumstances, the Plaintiffs took the position that the Defendants could not claim the Fair Report Privilege because it was not clear if Report 166 was subject to any official action whatsoever.  December 19 Order at 15.

The Court rejected the Plaintiffs’ contention.  Id. at 14-19.  According to the Court, Report 166 discussed two issues that were indisputably the subject of official action:

  1. The alleged cooperation between Trump’s “team” and Russian operatives, which was being investigated by the FBI; and
  2. References to earlier reports in the Dossier discussing Carter Page’s alleged relationship with Russian intelligence.  “The FBI was investigating whether Carter Page was recruited by Russian intelligence, the DOJ obtained a FISA warrant to surveil him, and, in January 2017, the DOJ sought renewal of that warrant based, in part, on information contained in the Dossier.”  Id. at 17.

The Court determined that those portions of Report 166 were plainly covered by the Fair Report Privilege and, “in accordance with Section 74’s broad construction and the degree of liberality which a media report is afforded, so too, by extension, is the remainder of the Report.”  Id.  The Court rejected the notion that line-by-line scrutiny of the Dossier was required under these circumstances:

BuzzFeed did not editorialize or restate the Dossier, it simply published it. . . . 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. . . . Indeed, such a line-by-line review would curtail the scope of the privilege and thus restrict the press’s ability to serve its basic function.

Id. at 18.

For largely these same reasons, the Court also held that the article was “fair and true.”  Id. at 19-20.  The Plaintiffs argued that the BuzzFeed article conveyed “the false impression that government officials took the allegations about Plaintiffs more seriously than they really did.”  Id. at 19.  The Court rejected this argument based again on its finding that BuzzFeed had published the Dossier without editorializing—and therefore, had not made any misstatements about the allegations about Plaintiffs—and because it found Plaintiffs’ cases in support of their “false-by-implication argument” to be unpersuasive.  Id. at 20.

The Court thus rejected the Plaintiffs’ granular interpretation of the Fair Report Privilege.  Instead, the Court’s application was consistent with the law’s intended protection: Allowing the press to gather the necessary information to allow the public to exercise effective government oversight.  Here, BuzzFeed resoundingly met that standard.

This decision exemplifies the wide berth given to reporters to comment on matters of public concern because, understandably, the public needs to be informed on such matters.