Wednesday, April 6, 2005
In what some have labeled a "libel by omission" lawsuit, the Washington Supreme Court has reversed the Washington Court of Appeals and reinstated the trial court's grant of a motion for summary judgment in a case in which a store owner sued a local tv station for defamation. In 1998, Spokane's KXLY Television aired a story about 40-year-old Glen Burson, who had wanted to wash the windows of Kitchen Interiors Showcase, a local business, in exchange for some candy. Mr. Glen Burson, who suffers from Down's Syndrome, was told to leave by the store's proprietor. Eventually, the owner called police, who arrested Mr. Burson. The situation escalated until Burson found himself charged "with criminal trespass and harassment, charges that Glen really doesn't understand." The owner received angry calls from KXLY viewers who watched the segment and followup newscasts. Finally, he filed a lawsuit against the station, charging that KXLY had defamed him since the newscasts "contained false statements and omitted material facts. The complaint alleged: Grant [a reporter for the station], while acting in the course and scope of his employment as a KXLY employee and KXLY were negligent and acted recklessly when they failed to describe as part of these telecasts the previous incidents and threats that had been made by Burson. Said negligence and reckless conduct constitute defamation, the omission of material facts and is libel by implication by KXLY and Grant regarding the reason Glen Burson was arrested." The Supreme Court disagreed, holding that "[t]o survive a defendant's motion for summary judgment, a plaintiff must make a prima facie showing as to all the defamation element. In a defamation by omission case, the plaintiff must show with respect to the element of falsity that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability....Here, the omitted information would not have negated the asserted defamatory implication in its entirety....Mohr has not made a prima facie showing that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Furthermore, the Court of Appeals' standard of "less arbitrary and insensitive" is not the correct test by which to measure defamation by implication caused by omitted facts." Read the entire opinion here.