Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, October 10, 2006

District Court Allows Some Causes of Action To Proceed in CNN Producer's Case Against Washington Examiner

The United States District Court for the District of Columbia is allowing Kathleen Benz's case against the Washington Examiner and John F. Bisney to proceed. Benz alleged defamation, invasion of privacy and intentional infliction of emotional distress after an item in an August 19, 2005 gossip column appeared in the Examiner, followed by pieces with like content on websites.

As the court recounted this dismal story, Benz and Bisney were colleagues at CNN between 2002 and mid-2005. Bisney wanted more than friendship, Benz did not. "...[P]laintiff learned that Bisney, without plaintiff's knowledge or permission, obtained access to her email account, read her emails, and established and maintained websites in the name of the plaintiff....On those websites, Bisney posted personal and private information and photographs of plaintiff....Bisney also wrote a "fake" article about the plaintiff and sent it to her....The article named various men whom plaintiff has allegedly dated...Of all the men mentioned, plaintiff has actually only dated Gary Williams, Paul Bosserman, Julian Epstein, and John Daggitt. On June 1, 2005, plaintiff filed for a temporary restraining order against Bisney....On July 11, 2005, plaintiff and Bisney entered into a "Binding Settlement Agreement and Release," which provided that "[t]he parties agree that they will not intentionally contact or communicate with each other." In July 2005, more articles about plaintiff, authored by Bisney, appeared on the Internet. In August 2005, Bisney used plaintiff's respond to personal advertisements seeking sexual relations...on a website....As a result, plaintiff received numerous phone calls and email messages from individuals who believed that plaintiff wanted to engage in sexual relations with them.

"On August 19, 2005, the Examiner published an article in the gossip column entitled "Controversial Love for CNN Producer" by Karen Feld....Prior to publishing this article, Ms. Feld did not speak to the plaintiff....Once the article was published, plaintiff contacted Ms. Feld and told her that the article was substantially false."

The Examiner published a "correction" on September 30. On September 2, the plaintiff filed this action against the defendants. 

Said the court, "According to the plaintiff, these articles are defamatory because they allege that plaintiff uses her position at CNN to meet and become romantically and sexually involved with "power players"...that she "hooked up" with porn king Mark Kulkis....These articles...have harmed her reputation professionally and in her community....In response, the Examiner argues that there is nothing defamatory about a single woman being "linked romantically" with single men....Moreover, the Examiner argues, the phrase "hooked up"...just means that Mark Kulkis and plaintiff met on a social basis. Finally, the plain meaning of the statement is that plaintiff "uses her position" to meet the "right people" is that plaintiff is a CNN producer, who, by definition, must use her position to meet the right people, i.e. those in a position to supply her with information for interviews and news stories. To the extent that the Examiner article is similar to the internet articles, Bisney adopts the Examiner's arguments...."

The court reviewed the standard for determining whether a statement is defamatory and found that the Examiner's August 19 article was capable of defamatory meaning. "...[A]n average, ordinary reader could likely comprehend that plaintiff uses her position at CNN for personal gain. Plaintiff is a single, professional woman in her mid-30s. An allegation that she is using her position...arguably makes [her] appear "odious, infamous and ridiculous."..." The court rejected the Examiner's defenses. However, it did not agree that the Correction published on September 30 was reasonably capable of defamatory meaning.

The court also found that Bisney's articles were capable of defamatory meaning, for the same reasons as given in its analysis of the Examiner article.

The court found that Benz stated a claim for false light against the Examiner and Bisney. "The Court's reasons as to why the Examiner's...article and Bisney's internet articles are capable of defamatory meaning are applicable to the Court's finding that those articles would be highly offensive to a reasonable person." It also found that she had stated a claim for public disclosure of private facts against both defendants. "The Court is persuaded that it is unlikely that an unmarried, professional woman in her 30s would want her private life about whom she had dated and had sexual relations revealed in the gossip column of a widely distributed newspaper, particularly in the context in which the information was revealed. Further, plaintiff's personal, romantic life is not a matter of public concern. Because the Court finds that unwanted publication of such personal, true facts would cause suffering, shame or humiliation to a person of ordinary sensibilities, the plaintiff has sufficiently satisfied the elements of this claim."

With regard to Bisney, the court held that Benz's privacy interest in her home address and telephone number sufficed to allow her to state her claim for public disclosure of private facts against Bisney, since he had published those without her consent on websites in conjunction with the solicitation for sexual relations. However, it refused to recognize her claim for intrusion into seclusion against Bisney, saying "[P]laintiff does not specify how Bisney invaded or interfered with her seclusion by physical intrusion. Plaintiff...does allege in her opposition to Bisney's motion that she suffers from a form of herpes...and that disclosure of this fact...satisfies the elements of intrusion....Because plaintiff fails to explain whether Bisney learned of this fact by physical intrusion into a place where she secluded herself, the Court is not persuaded that the elements of this claim have been met."

The case is Behr v. Washington Newspaper Publishing Company, Civil Action No. 05-1760 (EGS); 2006 WL 2844896 D.D.C. 2006

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