Case Analysis: Defamation and Blogs

In the age of lawyering we now live in, law firms frequently use blog posts, Twitter and newsletters as a marketing tool and to provide content of interest to clients or prospective clients.  These blogs and postings have become a tool not only for “reporting” in the broad sense, but also of showcasing an attorney’s depth of knowledge about a particular subject, and the fact that they have their fingers on the “pulse” of legal developments in their field as they happen.  While blogging, tweeting, or e-mail blasts often implicate ethical questions, another concern is whether, and to what extent, they may create possible exposure for defamation.

A recent New York Supreme Court decision of note considered this issue in the context of claims for libel by a doctor who alleged his reputation was ruined by blogging and other reporting about a court hearing. The plaintiff alleges that his ethics and practices were called into question by the Judge in a personal injury case in which he had testified as an expert.

In Katz, et al. v. Lester, Schwab, Katz & Dwyer, LLP, et al., Index No. 153581/2014 (Sup. Ct. N.Y. Cty.), Dr. Michael Katz sued two law firms and certain attorneys individually for allegedly libeling him in their publication of a series of blog posts and an email.  The posts and email pertained to a court hearing in which Dr. Katz served as the defendants’ expert. During the hearing, counsel for the plaintiff argued that Katz misrepresented the extent and duration of his medical examinations of the plaintiff.

Dr. Katz testified that he had performed two IMEs on the plaintiff, one which took 45 minutes and another which would normally have taken between 10 and 20 minutes, although he couldn’t recall the exact amount.  Unbeknownst to Katz, the second examination had been surreptitiously filmed and the video indicated that the exam only lasted about two minutes. This evidence called into question the veracity of Dr. Katz’s previous testimony. After the video was presented in court, the Judge dismissed the jury and scheduled a hearing as to whether he should declare a mistrial.

During subsequent proceedings held over several days, the judge repeatedly accused Dr. Katz of lying and perjury.  Indeed, he called him a liar more than 25 times during just one day of hearings.  And he both recommended that he retire from the medical profession, told him his career doing IME’s “is over,” and threatened to refer the matter to the District Attorney, the Office of Professional Misconduct, and the Administrative Justice.

Subsequent to these proceedings, a PI plaintiff’s firm published a blog and a PI defense firm authored an e-mail concerning the proceedings involving Dr. Katz. In their postings, the authors stated that Dr. Katz “offered testimony at trial that was completely inconsistent with the actual events,” and “was busted for lying on the witness stand.”

Additionally, in his email, the defense attorney stated, “[n]eedless to say, we do not use Dr. Katz’s services, but many carriers and firms do, and what transpired in this case makes him absolutely useless as an examining ‘expert’.” Katz sued the lawyers and their firms for libel and other claims.

The attorney defendants moved to dismiss the complaint arguing that all of the alleged defamatory statements were either privileged or non-actionable assertions of opinion.  The Court agreed, and dismissed the claims.

In its Opinion, the Court noted that the majority of the statements which were alleged to be defamatory are privileged under Section 74 of the New York Civil Rights Law, known as the fair reporting privilege.  Section 74 provides that  a “civil action cannot be maintained against a [person or firm] for the publication of a fair and true report of any judicial proceeding.” Making a side-by-side comparison of the hearing transcripts and the blog posts, the Court noted that the posts accurately reflected the numerous disparaging remarks made by the Judge as against Dr. Katz therein.

Regarding the remaining alleged defamatory statements in the blog postings which fell outside the fair reporting privilege, the Court noted, citing the seminal defamation case Gross v. New York Times, 82 N.Y.2d 146 (N.Y. 1993), that a statement of opinion that is accompanied by an accurate recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts is also not actionable, because it is readily understood by the audience as conjecture.

Impact: This case evidences that accurate reporting of court hearings and rulings should not present attorneys with potential liability arising from discontented participants in the hearings.  However, at the same time it highlights the risks of such reporting, and the need to exercise great care in presenting the facts.  And where an opinion is ventured based on a court proceeding, it is critical that you reference the facts forming the basis of the opinion, and do so accurately.