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Courts Grants BuzzFeed Summary Judgment in Dossier Case

By Adam Lazier

After nearly two years of litigation, on December 19, 2018 a Florida federal court granted summary judgment to the defendants in Gubarev v. BuzzFeed, one of the closely-watched defamation lawsuits brought against BuzzFeed over its publication of the so-called "Steele Dossier." Gubarev v. BuzzFeed, Inc., No. 1:17-cv-60426 (S.D. Fla. Dec. 19, 2018). The decision came barely a month before the case was scheduled to go to trial in Miami.

Background

BuzzFeed published the now-famous Steele Dossier, a collection of intelligence reports describing alleged connections between Donald Trump and the Russian government, on January 10, 2017. On its very last page, the document alleges that Aleksej Gubarev and his web-hosting companies were involved in Russian efforts to hack the Democratic Party leadership during the 2016 election campaign.

A month later, Gubarev, a Russo-Cypriot businessman, and two of his companies sued BuzzFeed and its editor-in-chief Ben Smith for defamation. Although BuzzFeed raised a number of arguments and defenses, it was clear from the outset that much of the parties' attention would be devoted to its fair report defense - the argument that it were protected from liability because it published the Dossier as part of a report on the official activity, including an FBI investigation into the Dossier and briefings about the document to President Obama, President-elect Trump, and Congressional leaders.

In June 2018, Judge Ungaro of the U.S. District Court for the Southern District of Florida denied the plaintiffs' motion seeking judgment on the pleadings on the fair report defense. See Gubarev v. BuzzFeed, Inc., 2018 U.S. Dist. LEXIS 97246 (S.D. Fla. June 5, 2018). That decision was certainly a hopeful sign for BuzzFeed – among other things, the court held that New York's expansive version of the privilege applied, that the privilege protected reports on confidential government activity, and that BuzzFeed could rely not only on the official activity involving the Dossier described in its own article, but also the activity described in a CNN article to which it hyperlinked.

Gathering Evidence

Judge Ungaro's June decision concluded, however, by emphasizing that BuzzFeed would still have to produce admissible evidence proving that the government activities reported on by BuzzFeed actually took place. When the case began, this appeared to be a tall order: details of counter-intelligence briefings and investigations are some of the most highly-classified secrets in government.

Seeking confirmation that the investigation, briefings, and other activities took place, BuzzFeed subpoenaed the FBI and other federal agencies. Not surprisingly, they objected to the subpoenas and forced BuzzFeed to bring a motion to compel. That motion would languish in D.C. federal court for more than ten months as the case moved through discovery in Florida.

Politics interceded, however. By early 2018, the government's treatment of the Dossier had become a hot issue among members of Congress from both parties. As part of that debate, Congressional committees released a number of reports – including the well-known "Nunes memo" – containing previously-classified information about the Dossier, the Presidential briefings, and the FBI investigation into it.

This release of "an unprecedented amount of information about the Dossier's origin and its use in an ongoing investigation" then led the court to grant BuzzFeed's motion to compel. See BuzzFeed, Inc. v. U.S. Dep't of Justice, 318 F. Supp. 3d 347 (D.D.C. 2018). The FBI would eventually provide BuzzFeed with a declaration that, among other things, confirmed it possessed the specific memo from the Dossier discussing the Gubarev plaintiffs when BuzzFeed published it.

Judge Ungaro's Summary Judgment Decision

Armed with this evidence, BuzzFeed moved for summary judgment, and – with a January 22, 2019 trial date fast approaching – Judge Ungaro granted the motion on December 19. She accepted that the Congressional reports were admissible evidence of government activity involving the Dossier, but the plaintiffs emphasized that none of the evidence indicated whether that the specific allegations about them were part of the briefings or investigations involving the Dossier.

As Judge Ungaro noted, then, the motion turned "on the following question: May Defendants claim the 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?" She concluded that "the answer is: yes."

Judge Ungaro recognized that requiring to tie every one of the forty-or-so people mentioned in the Dossier to specific official action would be inconsistent with the nature of news reporting and make it impossible to rely on the fair report privilege. "To go line-by-line to determine if official action existed with respect to each statement" at issue, she wrote, "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." She concluded that "[d]efamation law does not impose that requirement on the press." Because BuzzFeed simply published the Dossier "without editorializing," the privilege applied and the plaintiffs' claim failed.

The decision was welcome news to the defendants – BuzzFeed's newsroom reportedly broke into applause when it found out about the decision – but the Dossier litigation continues. The issue of whether BuzzFeed must connect each person mentioned in the Dossier to specific official activity will soon come before New York's intermediate appellate court in Fridman v. BuzzFeed, another Dossier lawsuit. And the plaintiffs in Gubarev have not given up – less than an hour after Judge Ungaro issued her summary judgment decision, they appealed to the Eleventh Circuit.

Kate Bolger, Nathan Siegel, Alison Schary, and Adam Lazier of Davis Wright Tremaine represented Defendants BuzzFeed and Ben Smith, along with Roy Black and Jared Lopez of Black, Srebnick, Kornspan & Stumpf. Plaintiffs were represented by Evan Fray-Witzer of Ciampa Fray-Witzer, Val Gurvits and Matthew Shayefar of Boston Law Group, and Brady Cobb and Dylan Fulop of Cobb Eddy.

 
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