When the King got knocked off his throne.

Case reviewed: Don King Productions Inc v Walt Disney Co and ESPN, District Court of Appeal, Florida, USA
40 So. 3d 40 (Fla. 4th Dist. Ct. App. 2010)

Background

In January 2005, boxing promoter Don King, and his company, issued proceedings in Florida regarding a broadcast the previous year on ESPN of a “SportsCentury” biopic.  The lawsuit named as defendants:

• Walt Disney (ESPN’s parent company);

• ESPN;

• ESPN Classic;

• Disney-owned ABC Cable Networks; and

• Advocate Communications, a Florida-based cable and satellite system, which transmitted the broadcast.

King sued for defamation as well as under the occasionally applied North American tort of false-light invasion of privacy. (This tort hasn’t yet been recognised in New Zealand.  Our courts so far have only recognised privacy torts regarding ‘highly offensive publication of private facts’ – applied by the Court of Appeal in Hosking v Runting and ors [2005] 1 NZLR 1; and ‘intrusion upon seclusion’ – applied by the High Court in C v Holland [2012] 3 NZLR 672.)

King’s claims of defamation arose in respect of five of the 183 statements broadcast in the programme; from but two of the 45 sources ESPN used.  Three of those statements complained of were spoken by Don Elbaum, a fellow boxing promoter who had known King for over 30 years.  Elbaum was also the source of the fourth statement, which was spoken by the programme’s host.  The final statement was spoken by Jack Newfield, a writer who had published newspaper articles, a book and a PBS documentary about King.

The five statements at issue were:

• Elbaum indicated that King organised a benefit exhibition fight for a hospital, but the hospital received only $1,500 out of the $85,000 in ticket sales.

• Elbaum described a private conversation he had with boxer Meldrick Taylor in which they discussed Taylor being owed $1.3m for a fight, and King giving Meldrick a cheque for only $300,000.

• Elbaum asserted that King threatened to have Taylor killed.

• Elbaum stated that King convinced doctors (?!) to invest $250,000 in a movie about his life that was never made.

• Newfield described an encounter he had with King at a press conference where King went crazy and threatened to kill him.

In response, ESPN argued, amongst other things, that everything Elbaum had said was consistent with what other interviewees had said and what other publications had reported about King for decades.  Extensive interview tapes and scores of media of all kinds repeatedly stated that King was a huckster who had threatened, intimidated, and cheated or underpaid many people, including boxers.

Application for summary judgment

After the claim was filed, the parties engaged in discovery—exchanging relevant documents—and held depositions (which is where, in the US system, parties to civil proceedings give recorded sworn testimony pre-trial, in order to find out what the witness knows and to preserve that witness’s testimony).

Following depositions, ESPN sought summary judgment against King—i.e. to have the case thrown out before trial—on the basis King had “failed to present record evidence that a genuine issue of material fact exists which would allow a jury to find, by clear and convincing evidence, that ESPN had published the statements in question with actual malice“.

The application—or ‘motion’, as they are called in the US—was heard by Judge Robert A. Rosenberg of the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Florida, in March 2008.  Judgment was delivered in July 2008.

Judge Rosenberg granted summary judgment to ESPN in respect of both the claims of defamation and false-light privacy.  The Judge ruled against King’s defamation claim on the basis King had failed to establish (a) the falsity of the allegations and (b) that ESPN had acted with ‘actual malice’.  King appealed against the rulings on his defamation claim to the Fourth District Court of Appeal of Florida.  He did not appeal against the Judge’s findings in respect of false-light privacy.

Appellate judgment

The three-judge panel noted King had not pursued his claim for false-light privacy.  The Court opined that this was likely because of the Florida Supreme Court’s ruling in a previous case, in which it declined—as have many other State courts in the US—to recognise a claim for false-light privacy separate from defamation.

The Court also noted that “summary judgments are to be more liberally granted in defamation actions against public figure plaintiffs”.

With this in mind, the Court determined the appeal strictly on the basis of King’s challenge of the trial judge’s findings regarding ‘actual malice’.  That is, the Court did not agree with the trial Court that none of the five statements was false, but noted that proof of falsity alone would be insufficient for King to establish his claim.

King argued a review of the evidence would demonstrate that ESPN acted with ‘actual malice’.  King pursued this argument upon three grounds.

First, King argued ESPN harboured ill-will towards him and intended to portray him in a negative light.  In this regard, King pointed to the documents yielded in discovery.  These included emails from the producers requesting more ominous music; emails containing references to King as a “greedy conniver”; email requests for King to be portrayed as a “huckster”, “thug” and an “evil mob connected guy”; and notations on the script commenting that King should be portrayed as “more evil”, “greedy” and “engaging in criminal activities”.

However, the Court noted that evidence of ill-will, alone, was insufficient to establish ‘actual malice’.  The Court determined this issue accordingly:

It seems clear that ESPN intended to produce a program with a particular theme, and used production techniques such as ominous music to enhance the program’s entertainment value.  It may also be true that ESPN chose to present the negative aspects of King’s life without balancing those with more positive images and stories.  However, nothing in the record shows that ESPN purposely made false statements about King in order to bolster the theme of the program or to inflict harm on King.  An intention to portray a public figure in a negative light, even when motivated by ill will or evil intent, is not sufficient to show actual malice unless the publisher intended to inflict harm through knowing or reckless falsehood … Furthermore, ESPN was not required to present positive statements about King to balance any negative statements, or to search until it found someone who would defend King.

Secondly, King argued that ESPN ignored the “obvious reasons” to doubt Elbaum’s and Newfield’s statements.  Regarding Elbaum, King asserted that ESPN knew or should have known that Elbaum was convicted of tax fraud in the early 1990s, and that Elbaum and King had a longstanding animosity.  As such, King submitted ESPN should have done more to verify Elbaum’s statements.

As to Newfield, whilst King did not attack his general credibility, he asserted ESPN had reason to doubt the veracity of the statement that King had threatened to kill him.  King pointed out that ESPN’s producers had a copy of Newfield’s PBS documentary, which, while it showed some parts of the confrontation, did not contain any evidence of a death threat.

The Court resolved that King’s arguments did not demonstrate ‘actual malice’.  In respect of Elbaum, the Court rejected the perceived relevance of his tax-fraud conviction: “[A] single criminal conviction more than a decade before publication does not require a publisher to question a source’s credibility on all matters.”  And, while the Court was more circumspect regarding the longstanding animosity, it ultimately determined this evidence, too, was insufficient to show ‘actual malice’ on the part of ESPN.

Regarding the alleged death-threat confrontation with Newfield, the Court ruled that, although there was no evidence of this on the videotape, it was accepted that the confrontation may have occurred off-camera, to which scenario ESPN producers deposed.  According to Newfield, after King had abused him, one of King’s associates approached Newfield and whispered: “Better watch your back, Jack.  This is Don’s town.”  Further, the Court took into account the fact King had refused to be interviewed.  Thus ESPN could not be provided with his version of events:

King is under no obligation to participate in the production; however, the fact that ESPN did not have access to King’s version of the events is a factor in support of ESPN’s reliance on Newfield’s account.

Thirdly and finally, King argued ‘actual malice’ could be inferred on the basis EPSN should have conducted a more searching investigation of the challenged statements, such as interviewing additional sources to verify the statements.

The Court also rejected this argument.  It noted that, even if a departure from journalistic standards could be established, this, alone, would be insufficient to amount to ‘actual malice’.

Accordingly, ESPN’s summary judgment was affirmed.

Comment

We will canvass two matters:

• A comparison between the laws of defamation in the US and New Zealand; and
• How this case may have been decided under New Zealand law.

How does US defamation law compare to New Zealand defamation law?

US defamation law can be tricky to comprehend from a New Zealand perspective, but the appellate judgment helpfully records the elements a US public-figure plaintiff needs to establish, from which the differences may be elucidated:

A common law claim for defamation requires the unprivileged publication (to a third party) of a false and defamatory statement concerning another, with fault amounting to at least negligence on behalf of the publisher, with damage ensuing … A public figure bringing a defamation action must prove more than mere negligence on the part of the publisher; he must prove that the publisher acted with actual malice.

The main differences, then, between US and New Zealand defamation law are:

(a) Falsity: Unlike the US, which places on plaintiffs the heavy burden of proving falsity, in New Zealand the onus is reversed: it is the defendant’s job to prove the allegations published were true. (On the other hand, New Zealand plaintiffs suing under the tort of ‘malicious falsehood’ are required to prove falsity, which is clearly why plaintiffs prefer to sue in defamation.  After all, why make the job harder for yourself!?)

(b) Fault amounting to at least negligence: New Zealand courts have consistently avoided importing the law of negligence into the law of defamation.  On the other hand, viewing defamation law through a negligence lens, it is clear the publication of a defamatory statement would usually also meet the elements of a negligence claim.

That is to say:

• a publisher will usually have a duty of care not to publish falsities about another person;
• false and defamatory publication would be a breach of that duty;
• it would generally be foreseeable that a defamatory publication would cause damage to the person’s reputation; and
• the damage caused will usually quite easily be traced to the defamatory publication.

However, to assess a New Zealand defamation claim in such a way would lead to a topsy-turvy assessment of the elements that need to be discharged, particularly having regard to the different onuses: i.e. who would need to prove what.

(c) Damage must ensue: Classically, in New Zealand (and virtually all Common Law jurisdictions bar the US) harm is presumed to arise from proof of a defamatory publication.  This appears to be changing, however, with the fledgling requirement for a plaintiff to establish the allegedly defamatory publication crosses the ‘serious harm’ threshold—in terms of both content and effect—which threshold now has statutory recognition in England and has recently received strong obiter support in a New Zealand case.

(d) Actual malice and public figures: This is probably the most radically different aspect between the two jurisdictions.  In the US, where a defamatory publication concerns a ‘public figure’ (and there are virtually libraries on the issue of who or what amounts to a public figure), that person must establish ‘actual malice’, as we have seen with Don King.  This standard was established by the US Supreme Court in New York Times Co v Sullivan 376 US 254 (1964) at 279-80, where the Court defined ‘actual malice’ as: “knowledge that the statement was false or reckless disregard of whether it was false or not”.  Publishing with actual knowledge of falsity is easy to comprehend, but what amounts to ‘recklessness’ needs further explanation because a finely nuanced standard of ‘recklessness’ also applies under New Zealand defamation law.  In the US, the Supreme Court in 1968 clarified the required standard:

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.  There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.  Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

The Court in King emphasised that recklessness may be found where “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports”.

As for New Zealand, in order to have a claim, even if you are a public figure, a plaintiff does not need to establish ‘actual malice’.  Similar considerations remain relevant, though.  If a defendant in New Zealand raises the defence of qualified privilege—either statutory qualified privilege or common-law qualified privilege—the plaintiff can ‘rebut’ the defence by proving, in terms of section 19 of the Defamation Act 1992, that “the defendant was predominantly motivated by ill will towards the plaintiff or otherwise took improper advantage of the occasion of publication”.  ‘Improper advantage’ in this context has been held to include reckless publication.  The test in New Zealand for recklessness is: Did the defendant take a cavalier approach to the truth of the statement? (Lange v Atkinson [2000] 3 NZLR 385 at [47].)

(As an aside, lawyers (or others) undertaking research on this issue will sometimes come across references, particularly in older English cases, to the phrase ‘actual malice’.  The use of this phrase ‘actual malice’ in fact has nothing to do with the US standard.  Such references can be treated synonymously with references to “express malice”.  Don’t be alarmed by the various phraseologies.  They all relate simply to the examination of whether a defendant’s conduct was such as to rebut or defeat the defence of qualified privilege (or fair comment/honest opinion in some of the very old cases.)

Is the US standard of recklessness ultimately the same as New Zealand’s standard of recklessness?

They are similar but the US standard is slightly tougher for plaintiffs to establish.  Proof of a publisher’s indifference to truth, or sometimes even gross carelessness, may be enough in New Zealand for qualified privilege to be successfully rebutted because this will generally suggest a “cavalier” approach to the truth.

By contrast, for the US ‘actual malice’ standard to be established, a plaintiff will have to go one step further, and prove the defendant actually “entertained serious doubts as to the truth”, which may be established where there are “obvious reasons to doubt” the allegations to be published.

It follows, then, that where ‘actual malice’ could be proved in the US, then such conduct would meet the test for ‘improper advantage’ in New Zealand.

Does New Zealand apply a different standard if one is a ‘public figure’?

The short answer is: “No… but.”  In the US, if you are a movie star, professional wrestler, NFL or NBA player, or the like, then it is safe to assume you will be deemed a ‘public figure’ for the purposes of defamation law.  You can even be considered a ‘public figure’ if you are an ordinary citizen but have courted publicity to promote a certain cause or issue.

In New Zealand, an All Black or Shortland Street star will not face a higher hurdle to bring a defamation claim.  However, as a result of the Court of Appeal’s decision in Lange v Atkinson, and subsequent developments, New Zealand defamation law provides greater protection for people to express themselves on broadly ‘political’ matters.  In Lange, itself, statements were held to attract qualified privilege if they concerned former, current or aspiring parliamentarians “so far as those actions and qualities [as reported] directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities”.  It has been said that this law might extend beyond parliamentarians to cover local-body politicians, as well as those involved otherwise in forms of representative and responsible governance.  So there is even potential for the law to develop to include, for example, trustees of school boards.  Protection is not carte blanche, however.  The subject matter at issue will be closely examined to see whether the statement truly is a matter of public concern. And, of course, even where an extended qualified privilege may apply, the plaintiff may endeavour to rebut the privilege in terms of section 19.

Would the case have been decided differently in New Zealand?

It is important to remember this was an application for summary judgment, not a trial.

As a result, because New Zealand does not afford special status to publications about public figures, it is doubtful the case would have been dismissed summarily.

Further, it is even doubtful qualified privilege would have applied under current New Zealand law. Even assuming qualified privilege did apply, however, it would have been a trial issue (probably decided by a jury) whether ESPN was “predominantly motivated by ill will” or “took improper advantage of the occasion” so as to defeat privilege.  It is always difficult to predict how such issues would be resolved, but it is important to note that, even though ESPN’s producers evidently harboured a degree of ill-will towards King, this alone would be insufficient to rebut the privilege.  King would have to prove ESPN was “predominantly motivated by ill-will” to publish the matters of complaint.  In all likelihood, this wouldn’t be established given ESPN’s other reasons for publishing the material – i.e. to present an accurate record of the controversies in King’s life.  On the other hand, the evidence disclosed in discovery would have been great evidence for King’s lawyers to make a ‘song and dance’ about at trial.

With no qualified privilege necessarily applying, ESPN would likely have had to raise the defence of truth (given the factual nature of the allegations), and perhaps honest opinion in respect of the fifth statement alleged by Newfield: that he perceived King’s associate’s threat to amount to a death threat.  On the other hand, ESPN would also likely have adduced evidence of ‘bad reputation’, which can significantly reduce the sum of damages a defendant is otherwise liable to pay following a plaintiff’s successful defamation prosecution.

In this regard, section 42 of the Defamation Act provides:

Notice of bad reputation

In any proceedings for defamation, where the defendant intends to adduce evidence of specific instances of misconduct by the plaintiff in order to establish that the plaintiff is a person whose reputation is generally bad in the aspect to which the proceedings relate, the defendant shall include in the defendant’s statement of defence a statement that the defendant intends to adduce that evidence.

Certainly Don King’s life is replete with controversial material, including his having run an illegal bookmaking operation, mobster connections, his having killed two men, and many issues regarding payments to boxers whom he has promoted.

In a 2008 film, former heavyweight champion Mike Tyson had this to say of his former manager:

…a wretched, slimy, reptilian motherfucker. This is supposed to be my ‘black brother’, right?  He’s just a bad man, a real bad man.  He would kill his own mother for a dollar.  He’s ruthless, he’s deplorable, he’s greedy … and he doesn’t know how to love anybody.

In any trial that proceeded, it might be asked, “What reputation?”

Editor’s note

This post has been greatly assisted by an erudite case summary written by none other than Judge Rosenberg, whose trial-court judgment the Court of Appeal upheld.  The article—Robert A. Rosenberg “Don King Productions, Inc. v. Walt Disney Co.: Reinforcement of Actual Malice as the Seminal Defense to Public Figure Defamation Claims in Florida” (2012) 37(1) Nova Law Review 68—can be found here.