Fox Station Wins Appeal in Maryland False Light Claim
June 7, 2006
Charles D. "Chuck" Tobin- Washington
A television news writer’s instruction for others to pull archive footage for a different story, without screening the footage herself, does not constitute actual malice, a Maryland appeals court has held. In a 2-1 decision, the Maryland Court of Special Appeals affirmed summary judgment rendered in the false light invasion of privacy claim in favor of Fox’s Washington, D.C.-area station.
Ross v. Fox Television Stations, Inc. was decided this spring out of a February 2002 broadcast about new District of Columbia towing regulations designed to eliminate corruption in the industry, as well as an FBI sting that resulted in the arrests of 60 towing company employees. Plaintiff Terrence Ross, owner of a suburban Maryland towing company, was not implicated in the arrests. Ross was, however, the defendant in a civil class action lawsuit against a number of towing companies alleging fraud.
Fox owned-and-operated station WTTG, which serves the Washington, D.C.-area audience, a month earlier had broadcast a story on the class action that included footage of one of Ross’s trucks. In preparing the script for the February 2002 story, the morning-news writer remembered that the class-action story had run and directed others at the station to pull archive footage from it. She did not herself screen either the archive footage or the video cut for the new story. The February 2002 story about the arrests and the new towing regulations included images of one of Ross’s company’s trucks, recognizable by its logo.
For reasons never made clear, Ross filed the lawsuit after expiration of the defamation statute of limitations. His counsel instead brought the claim as a false light claim. Under Maryland law, defamation has a one-year limitations period, while false light has a three-year limitations period.
In May 2005, the Maryland Circuit Court granted WTTG’s summary judgment motion on the ground that Ross had failed to demonstrate actual malice with convincing clarity. Two judges of the Maryland Court of Special Appeals affirmed that ruling on March 8, 2006, over a dissent.
The majority opinion by Judge James R. Eyler rejected plaintiff’s argument that, because the same writer had prepared the January 2002 class-action story and the February 2002 script for the broadcast at issue, she must have had actual knowledge of the broadcast. The court cited to the writer’s deposition, in which she testified about her state of mind at the time she directed others to pull the archive tape: “I just remembered that it was about towing companies. That’s all I remembered about it at the time.” The court also noted that the writer testified that she had not remembered that the earlier footage contained images of the plaintiff’s company logo. The court concluded:
This testimony indicates [the writer] had no actual knowledge at the time of the broadcast that [the company] was depicted on the video, only that the footage depicted “towing companies.”
The court also rejected Ross’s interesting argument that, because “at least one employee of [WTTG] must have had actual knowledge that [his company] was depicted on the tape,” the “collective knowledge of all of [WTTG’s] employees should be imputed” to the station. Citing to New York Times v. Sullivan, the court noted that Ross “produced no evidence that any employee” had acted “with at least reckless disregard of the falsity of the statement.” The court held that the evidence Ross urged did not establish “that the requisite knowledge existed.”
Finally, the court rejected Ross’s argument that WTTG had a duty to investigate before using the archive footage or that the station’s actions reflected a purposeful avoidance of the truth or falsity of the February 2002 broadcast.
Judge Timothy E. Meredith dissented. He wrote that the evidence “was sufficient” for a trier of fact to find that the station “acted with total disregard for whether it was true that [Ross’s] towing company had any connection to the criminal activity described in this news report.” To him, this “strongly supported” a finding of actual malice.
The majority and dissent both declined to address WTTG’s additional
arguments that Ross evasively masqueraded a defamation claim to contravene
the statute of limitations, and that because the litigation sought to
recover for the depiction of a sole proprietorship business and not Ross
himself, invasion of privacy law would not permit recovery because a
business has no cognizable privacy interest.
Holland & Knight represented Fox television station WTTG in this litigation.
For more information, e-mail Charles D. Tobin at
charles.tobin@hklaw.com or call toll free, 1-888-688-8500.
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