Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 1 of 35 : ·,DC Sl>NY l;i,Clil\lENT EL1 .. CTRONICALLY FILED ____ #=--1· ~-1.-1,1-lz~ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK nuc DATE HLED: ---------------------------------- X _,_.-,..,.~ / l!:::::==-======::=.I MICHAEL LEIDIG and CENTRAL EUROPEAN NEWS LTD, 16 Civ. 0542 (VM) Plaintiffs, DECISION AND ORDER - against BUZZFEED I INC., Defendant. ---------------------------------- X VICTOR MARRERO, United States District Judge. Plaintiffs European News Michael Ltd ("Leidig") Leidig (collectively, ( "CEN" ) and Central "Plaintiffs") commenced this litigation against defendant BuzzFeed, Inc. ("BuzzFeed") alleging libel and seeking $5,000,000 in damages in connection with an article published by BuzzFeed regarding Plaintiffs. (See "Complaint," Dkt. No. 1.) BuzzFeed moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), on the grounds that Plaintiffs cannot satisfy two of the elements required for a statement; and libel claim: (2) the ( 1) falsity of the defamatory requisite degree of fault. (See "Motion," Dkt. No. 102.) For the reasons discussed below, the Court finds that there are no genuine issues of material fact regarding the falsity of BuzzFeed's statements and thus summary judgment is warranted. BuzzFeed's Motion is therefore GRANTED. 1 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 2 of 35 I. BACKGROUND A. FACTUAL BACKGROUND On April 24, that operates 2015, BuzzFeed, an internet media company the popular eponymous website, article titled "The King of Bullsh*t News" published an (the "Article") on its website. (See Dkt. No. 1-1.) The Article's primary subject is a selection of stories sold by CEN, a British news agency founded by Leidig in 1995 which "provid [es] news from non- English-language countries" to third-party media services in Britain and elsewhere. (Complaint, "April 2018 Leidig Dep. Tr.," 11 Dkt. 14-15, 22-23; see also Nos. 104-10, 104-11 at 17:9-17.) The Article specifically focuses on stories disseminated and sold by CEN on topics such as teens in China walking cabbages on leashes due to loneliness; a Justin Bieber ringtone saving a Russian fisherman from a bear attack; and numerous stories involving male castration. (See Dkt. No. 1- 1 at 3, 6, 13-17.) The Article developed after many months of investigation, and in the footsteps of prior reporting by other news organizations pointing to alleged inaccuracies in CEN's stories. Three veteran journalists worked for over five months researching the facts contained in these and other CEN stories. (See "White Deel.," Dkt. No.109116-14.) From the beginning, the question among the BuzzFeed team members was 2 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 3 of 35 whether they could '[t]his [CEN story] "reach the point where is definitely fake.'" At the conclusion of the investigation, (they] can go (Id. Ex. 2 at 2.) the BuzzFeed team members summarized that "the evidence assembled by BuzzFeed News suggests that an alarming proportion of CEN' s news' 'weird stories are based on exaggeration, embellishment, and outright fabrication[.]" On January (Dkt. No. 1-1 at 4.) 2016, 25 , Plaintiffs commenced this litigation alleging that BuzzFeed's Article falsely suggests that Plaintiffs are "in the business of publishing articles presented as true that are false" "fake news" and "that [P]laintiffs or so-called are specifically excerpt eight the largest (Complaint 1 3.) purveyors of such articles in the world." Plaintiffs news statements from the Article which they allege are defamatory and published with (Id. 11 3, "reckless disregard" as to their truth or falsity. 6, 7, 27, 33, 38, 46, 55, 62.) These eight statements form the basis of Plaintiffs' libel claims and are set forth below. 1. Statement One Cabbage Story The Article details a story CEN sold "concerning people in China loneliness" walking (the cabbages, rather "Cabbage Story"). than (Id. , pets, 27.) out of Plaintiffs cite the following statement in the Article about the Cabbage Story as defamatory: 3 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 4 of 35 The story included quotes from "Chinese psychiatrist Wen Chao" , explaining how walking a cabbage on a lead can help reduce feelings of isolation, and a 17-year-old called Lui Ja Chen, who supposedly said: I feel I can transfer my negative thoughts about myself to the cabbage, go for a walk with it and come home feeling better about myself. The pictures were credited to CEN, and the same quotes appeared on the Austrian Times site. Unsurprisingly, the story was quickly debunked [] by Kotaku, BuzzFeed, and the Wall Street Journal. The teens were not walking cabbages because they were lonely: they were walking cabbages as part of an art event at a music festival by Chinese artist Han Bing (who has been walking cabbages as part of his art for over a decade). ( "Statement One") . (Id. 1 27.) Plaintiffs allege that this statement implies "that [P]laintiffs' story was untrue, and that it was made up by [P]laintiffs, and that [P]laintiffs had made up quotes from non-existent persons," and that these implications are defamatory to Plaintiffs. 2. (Id. 11 29-30.) Statement Two -- Sashimi Tapeworm Story The Article also covers a story by Plaintiffs about "a Chinese man who had reportedly gotten tapeworm from eating too much sashimi, [and the] story was accompanied by a photo purporting to be a photo of the man's x-ray showing the spots of disseminated Story"). (Id. 1 cysticercosis" 38.) (the "Sashimi Tapeworm Plaintiffs allege that the following statement in the Article is defamatory: Soon after the story made the rounds, it was investigated by the debunking site Snopes, which found that the xray photos of the alleged victim were "similar to those 4 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 5 of 35 included in a 2014 case report published by the British Medical Journal that dealt with a man who contracted a rare case of disseminated cysticercosis through the consumption of uncooked pork (with no mention of raw fish)". It does not appear that CEN ever alerted its customers to the fact that the images had been debunked; the original story remains online at the Daily Mail and elsewhere. ("Statement Two") (Id. 1 38.) Plaintiffs allege that, through this statement, BuzzFeed "intended to and did assert that [P]laintiffs had used an x-ray of some other person and passed it off as an x-ray of the Chinese man they were writing about, and revealed," and Plaintiffs. 3. failed (Id. to make a the statement 11 39, 42-43.) correction is false when and this def amatory was to Statement Three -- Pink Kitten Story The next allegedly defamatory statement in the Article involves a story about a Russian woman named Elena Lenina ("Lenina") who had dyed her kitten pink, supposedly causing its death (the "Pink Kitten Story"): As Gawker's Antiviral site pointed out, the story was false. The kitten was not dead. Lenina was in fact simply posting pictures of her -- very much alive -- kitten on social media. [T]his appears to be a situation where CEN sold a false (and potentially defamatory) story about a real person with little regard for the consequences that person would face when the story went viral. Nor has there been any apparent attempt to correct the story since it was proved to be false. 5 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 6 of 35 ("Statement Three"). (Id. , 46.) Plaintiffs allege that, through this statement, BuzzFeed intended to and did assert that "[Plaintiffs] are intentional purveyors of false stories, and do not care whether they injure any persons by their publications, and persist in such conduct even after a story is proven to be false." (Id. , Furthermore, 47.) Plaintiffs allege that the statement is false and defamatory. (Id. ,, 47-48.) 4. Statement Four -- Nude Women Story The Article also describes a story by Plaintiffs "concerning some Russian women who stripped in public and lost their jobs as a result" , 55.) Plaintiffs excerpt (the "Nude Women Story"). the following statement (Id. in the Article about the Nude Women Story: [I] t appears that CEN took the photos, invented a newsworthy narrative, inserted false names for the women, credited a nonexistent photographer, and fabricated four sets of quotes to fill out the text. ("Statement Four"). (Id.) Plaintiffs statement "meant to and did accuse allege that this [Plaintiffs] of creating a false news story and fraudulently selling it as true," and the assertions in the story are false and defamatory. 11 56-58.) 6 (Id. Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 7 of 35 5. Statement Five -- Two-Headed Goat Story The Article also covers Plaintiffs' story concerning "the birth of a two-headed goat on a farm in China" (the "TwoHeaded Goat Story") . (Id. 1 62.) For the Two-Headed Goat Story, BuzzFeed also quoted an expert who explained that the story's accompanying photograph was "digitally enhanced." (Id.) Plaintiffs claim the following statement in the Article is defamatory: A Xinhua journalist who claims to have seen the goat in person didn't get the farmer to talk, but a news agency based in Vienna somehow did, despite the story taking place in a remote rural community a six-hour train ride from Beijing. ( "Statement Five"). (Id.) Plaintiffs meant to and did imply that allege "[P] laintif f s that BuzzFeed had published a fake photograph and had invented quotes to make a story more interesting," and that implication is false and defamatory. (Id. 11 63-65.) 6. Statement Six Apart from Plaintiffs sold, its coverage about specific stories the Article also describes CEN and Leidig more broadly: But then the bottom fell out of the business . . . after 9/11, and it seemingly never recovered. So it appears that Leidig decided to play the online game, as he saw it. He launched websites such as the Austrian Times and Croatian Times. He cast his net far 7 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 8 of 35 afield to China, India, and Latin America, scouring for images and posts on social networks that he could weave a story around in order to hit up old clients with a new kind of content. ( "Statement Six"). (Id. 1 7.) Plaintiffs allege that, through Statement Six, Buzz Feed "intended to and did assert that, suffering from financial difficulties, [Plaintiffs] decided to go into the business of fabricating and selling fake news stories." (Id. 1 8.) Plaintiffs further assert that BuzzFeed "had seen no documents" and "had spoken with no persons who had said suffering that, [Plaintiffs] had decided from to financial go into difficulties, the fabricating and selling fake news stories." Thus, Plaintiffs defamatory. 7. (Id. 11 claim this statement business (Id. is of 11 9-10.) false and 11-12.) Statement Seven Plaintiffs also highlight a similarly broad statement about CEN in the Article as allegedly defamatory: CEN's stories frequently contain lines from someone that no one else could persuade to talk, including the local media. And many of those quotes, especially those from anonymous "officials", include phrases that one would expect to hear from someone who grew up in the UK. ( "Statement Seven") (Id. through Statement Seven, 1 33.) Plaintiffs allege that, BuzzFeed "meant to and did imply that Mr. Leidig or others at CEN frequently make up quotes 8 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 9 of 35 included in CEN's stories," which is false and defamatory to Plaintiffs. ~~ (Id. 34-35.) Statement Eight 8. Finally, Plaintiffs "The Article is Eight") King allege the Bullsh*t of an assertion that that headline the ("Statement News" Plaintiffs of "were in the business of publishing news articles presented as true that are false, and known to be false by [Plaintiffs], and that [Plaintiffs] are the largest purveyors of such articles in the world." (Id. ~~ 2-3.) Plaintiffs assert that Statement Eight is false and defamatory. (Id. ~~ 4-5.) B. PROCEDURAL BACKGROUND Plaintiffs sued BuzzFeed on January 25, thereafter partial and prior summary to discovery, judgment, 2016. Plaintiffs arguing that the Shortly moved for Article's statements were defamatory and false as a matter of law and that neither CEN nor Leidig could be a public figure for the purposes of this action. the Court denied the (See Dkt. No. 16.) On May 9, 2017, motion, finding that "there remain numerous genuine issues of material fact such that filing a motion for summary judgment would be premature and granting it would be improper." Leidig v. BuzzFeed, Inc., No. 16 Civ. 542, 2017 WL 2303670, at *5 (S.D.N.Y. May 9, 2017) 9 (hereafter, Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 10 of 35 "May 2017 Order," Dkt. No. 47). The parties spent the next year engaged in discovery. On August 22, 2018, BuzzFeed filed a motion for summary (See Motion; see also "Notice judgment pursuant to Rule 56. of Motion," Dkt. No. 101.) In conjunction with the Motion, BuzzFeed submitted a statement of 216 numbered undisputed material facts, as required by the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. In 103.) (See "BuzzFeed's Rule 56.1 Statement," Dkt. No. sum, BuzzFeed argues that Plaintiffs cannot establish a genuine dispute of material fact regarding the falsity of the eight statements and the requisite degree of fault with which BuzzFeed made the statements, regardless of whether Plaintiffs are public figures. On Motion. September (See submitted 12, 2018, "Opposition," their own Plaintiffs Dkt. statement No. of responded 115.) 79 to the Plaintiffs also numbered undisputed material facts, but contested only one undisputed material fact in contained "Plaintiffs' Rule BuzzFeed's Rule 56.1 56 .1 Counter Statement," Statement. Dkt. No. (See 112.) Plaintiffs argue that they have sufficient evidence to show that the publication is false, that Plaintiffs are not public figures, and, even if they are public figures, enough evidence 10 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 11 of 35 of actual malice exists to nevertheless requirement for libel claims. fulfil the fault (See Opposition at 13-24.) On September 27, 2018, BuzzFeed filed a reply in support of its Motion, as well as a reply to Plaintiffs' Counter Statement. Rule 56.1 (See Dkt. Nos. 116, 117.) II. LEGAL STANDARDS A. RULE 56 (A) Summary judgment is appropriate if the evidence shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The role of a court in ruling on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried[.]" Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. See Celotex Corp., 477 U.S. at 323; Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). If the moving party satisfies its burden, the nonmoving party must provide specific facts showing that there is a genuine issue for trial in order to survive the motion for summary judgment. See Shannon v. New York City Transit Auth., F.3d 95, 98-99 (2d Cir. 2003). 11 332 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 12 of 35 In determining whether the moving party is entitled to judgment as a matter of law, the court must "resolve all ambiguities and draw all justifiable factual inferences in favor of the party against whom summary judgment is sought." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); see also Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996) ("Summary judgment is proper if, viewing all facts of record in a light most favorable to the nonmoving party, no genuine issue of material fact remains for adjudication.") (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986)). Although the party opposing summary judgment may not "rely on mere conclusory allegations nor speculation," D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), if there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper. See Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996). B. LOCAL RULE 56.1 STATEMENTS Rule 56 .1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ( "Local Rule 56 .1") requires the party moving for summary judgment to file of "a separate, the material facts short and concise statement as to which the moving party contends there is no genuine issue to be tried." Local Rule 12 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 13 of 35 56.l(a). The non-moving party opposing the motion for summary judgment "shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." Local Rule 56.l(b). In addition, the facts set forth in a moving party's statement "will be deemed to be admitted" by the opposing statement party's "unless specifically controverted." Local Rule 56.l(c). "The purpose of Local Rule 56. 1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." See Holtz v. Rockefeller 62, 73 & Co., Inc., 258 F.3d (2d Cir. 2001). C. LIBEL To make a case of libel under New York law, a plaintiff must establish the following five elements: 1) a written defamatory statement of fact concerning the plaintiff; 2) publication to a third party; 3) fault (either negligence or actual malice depending on the status of the libeled party); 4) falsity of the defamatory statement; and 5) special damages or per se actionability (defamatory on its face) . Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000); see also Church of Scientology Int'l v. Eli Lilly & Co., 778 F. Supp. 661, 666 (S.D.N.Y. 1991). Based on 13 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 14 of 35 the parties' arguments, this Order largely focuses on the fourth element, the falsity of the defamatory statements. A defamatory statement of fact is one "which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse Inc., No. Mar. 7, in society." 11 Civ. 2014) 9459, Balestriere PLLC v. 2014 WL 929813, (internal quotation CMA Trading, at marks *16 and (S.D.N.Y. citations omitted); see also Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005); Foster v. Churchill, 642 N.Y.S.2d 583, 587 (1996). "[O]nly factual statements are actionable as defamation or libel[,]" because "New York law protects derogatory statements which may be categorized as 'opinion' as opposed to 'fact.'" Chau v. Lewis, 771 F.3d 118, 128 (2d Cir. 2014) . Upon reviewing the statement in question, a court "must give the disputed language a fair reading in the context of the publication as a whole" and construe it as the intended readership would. Celle, v. Simon When a & Schuster, Inc., 625 N.Y.S.2d 477, statement's defamatory plaintiff must make "the 209 F.3d at 177 (quoting Armstrong language may implication is "an especially rigorous be reasonably 14 read to 481 at (1995)). issue, showing" impart a a that false Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 15 of 35 innuendo," and "that the author defamatory inference." Biro v. 441, or Conde Nast, endorses the 883 F. Supp. (internal 2012) (S.D.N.Y. 465-66 intends quotation 2d marks omitted). Despite truth often being framed as a defense to libel, the burden of proving the falsity of a statement rests with the plaintiff. informed overlooks by "The the 'common 3d 348, 357 Yorker Magazine, for law of inaccuracies minor substantial truth. '" Supp. standard Blair v. (S. D. N. Y. Inc., falsity concentrates and 2014) upon [or] 7 F. (quoting Masson v. 496, 516 is [which] libel[,] Inside Edition Prods. , 501 U.S. 'the substance, the gist, assessing (1991)). New "[W]here the sting' of a statement is true, it cannot be libelous." Stern v. Cosby, 645 F. Supp. 2d 258, 276 (S.D.N.Y. 2009) However, accuracy truth about the (quoting Masson, 501 U.S. at 517). does not necessarily statements either. entail "New pinpoint York law recognizes that an alleged libel is not actionable if the published statement could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation." Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 242-43 (2d Cir. 2017). Where "the truth is so near as to the facts published that fine and shaded distinctions must be drawn and words pressed out of their 15 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 16 of 35 ordinary usage to sustain a charge of libel, no legal harm has been done." Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986) (quoting Cafferty v. Southern Tier Publ'g Co., 226 N.Y. 87, 93 (1919)). "The 'substantial truth' standard finds basis in the realities and purposes of defamation law." Tannerite Sports, 864 F.3d at 243. libelous To require absolute accuracy of allegedly statements would damage a system of "reasonable regulation . . . by an overly technical or exacting conception of truth in publication." Id. (quoting Cafferty, 226 N.Y. at 93) . Necessarily, in order to assess a statement for falsity or substantial truth, the statement must be specifically identified by the plaintiff. See id. at 251. Such "specificity is necessary so defendants and courts may address themselves to the parts of a communication alleged to be false and defamatory instead of those not objected to." Id. Even a short publication "often includes thousands of direct statements and implied messages whose veracity could be questioned by a defamation plaintiff." Id. A defendant can prevail on a motion for summary judgment if it can show that "no rational jury could find. . that the statements at issue are false." Blair, 7 F. Supp. 3d. at 16 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 17 of 35 358.1 Put another establish the way, if statements' a defendant can conclusively truth or substantial truth, the libel claim must fail, resulting in summary judgment in favor of the defendant. See id. at 359 (granting summary judgment for defendant media company after finding that a statement calling plaintiff a "squatter [,]" even "literally if false[,]" sufficiently captured the "'substance' or 'gist'" of the truth) ; district see also Chau, court's dismissal statements that plaintiffs, and "fear [ed] of 771 F. 3d at 130 libel claims financial traders, (affirming and finding made "bets" that the U.S. economy would strengthen" as "substantially true" because "bets are the nature of much of the financial market"). III. APPLICATION BuzzFeed argues that Plaintiffs cannot show the falsity of the allegedly defamatory statements, and thus Plaintiffs' claims must fail. The Court agrees. instances where BuzzFeed points In the face of repeated to specific evidence "The Supreme Court has not yet expressed a view on 'whether the element of falsity must be established by clear and convincing evidence or by a preponderance of the evidence.'" Blair, 7 F. Supp. 3d. at 357 (quoting Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989)). While BuzzFeed does not address this point, Plaintiffs assert that the burden of proof for falsity turns on whether Plaintiffs are public or private figures. (See Opposition at 11-12.) Because Plaintiffs fail to carry their burden under either standard, the Court need not determine whether Plaintiffs are public or private figures or the proper burden of proof under New York law in these circumstances. 17 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 18 of 35 supporting the truth of the Article, Plaintiffs' sole rejoinder is that neither Leidig nor any CEN employee admitted to knowingly publishing "a fake news story" or to "add[ing] phony quotations to a story." (Opposition at 15-16.) Although such "bland cryptic claim [s] of falsity supported by the credibility of a witness might be sufficient to establish a proposition in other civil cases, the First Amendment demands more." Celle, 209 F.3d at 188 (reversing jury verdict in plaintiffs' favor where the only evidence of falsity was one plaintiff's testimony that the allegedly defamatory statement was not true); see also D'Amico, 132 F.3d at 149. Apart from these statements, Plaintiffs provide no evidence that BuzzFeed's eight statements about the CEN stories are false. As such, no jury could find BuzzFeed's statements to be false. See Blair, 7 F. Supp. 3d. at 358. Plaintiffs' inability to identify a genuine dispute of material fact is best exemplified by their decision to contest only one of Buzz Feed' s the Rule over 56. 1 two hundred numbered paragraphs Statement. For the remainder of in the statements, Plaintiffs rely the blanket denial that "[i]n not challenging [BuzzFeed's] other 215 assertions of fact, [P]laintiffs do not mean to concede that any particular ones are relevant motion [.]" and material ( Plaintiffs' to the issues raised on this Rule 56. 1 Counter Statement at 2.) 18 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 19 of 35 Plaintiffs' "blanket denial" does not even "purport to dispute the facts that are material" to the disposition of BuzzFeed's Motion. Chimarev v. TD Waterhouse Inv'rs Services, Inc., 280 F. Supp. 2d 208, 223 (S.D.N.Y. 2003) (accepting as true facts set forth in a Rule 56.1 statement because the counter-statement consisted solely of "blanket denials" and was "not supported by citation to any evidence"), aff'd, Fed. App'x. 259 (2d Cir. 2004). Moreover, Plaintiffs' 99 Rule 56.1 Counter Statement presents no other facts that dispute the key facts regarding falsity contained in BuzzFeed's Rule 56.1 Statement. Opposition. These concessions doom Absent any facts validating CEN' s Plaintiffs' stories and supported by evidence, no jury could find for Plaintiffs on falsity. Plaintiffs' strategy of painting with strokes is not limited to blanket denials. broad brush Plaintiffs also attempt to expand the scope of their claims in the Opposition. That is, because "Plaintiffs' pleading is a complaint, not a bill of particulars [,]" should analyze whole, not "the libelous the effect of (Opposition at 24.) in the fabricate Plaintiffs [A]rticle quotes." assert 'sting' the" of that the Court the article as a eight statements at issue. Plaintiffs now "challenge any assertion that (Id.) [P]laintiffs The 19 Court make up rejects stories or Plaintiffs' Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 20 of 35 maneuver - - which would force Buzz Feed to defend a moving target -- because Plaintiffs must specifically identify the defamatory statements relevant to their claims. See Tannerite Sports, 864 F. 3d at 251. The only relevant statements for Plaintiffs' claims are the eight excerpted in the Complaint. Thus, whereas in the May 2017 Order the Court was wary of making determinations regarding the falsity of the eight statements on the basis of allegations in a complaint, now, with discovery concluded, it is clear that Plaintiffs cannot meet their burden. cannot satisfy Because the Court finds that Plaintiffs the falsity element for any of the eight statements, the Court does not address BuzzFeed's alternative argument that Plaintiffs are public figures and would need to show that BuzzFeed made the statements with actual malice as to their falsity. A. STATEMENT ONE In Statement Story as One, "debunked," the Article describes the Cabbage implying that Plaintiffs manufactured false quotes of individuals walking cabbages on leashes to combat depression. Plaintiffs claim that the quotes contained in the Cabbage Story are true, are real. ( Complaint , 31.) and that the persons quoted However, deposition testimony from Leidig and CEN's employees belie these claims. could not verify the quotes, 20 but claimed that Leidig John Feng Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 21 of 35 ("Feng"), a journalist employed by CEN, was responsible for writing and researching the Cabbage Story. (See "August 2017 Leidig Dep. Tr.," Dkt. No. 104-6 at 48:5-16, 58:21-24, 164:723; April 2018 Leidig Dep. Tr. 330:20-332:25.) Yet Feng admitted that he did not work on the Cabbage Story because he started work at CEN only two months after CEN distributed the story to clients. ( See "Feng Dep. Tr. , " Dkt. No. 104-12 at 29:4-24, 47:4-13, 164:6-15.) Further, when Feng researched the Cabbage Story in connection with the Article, he was unable to verify the quotes CEN included in their story. verified (See id. 38:13-44:2.) BuzzFeed' s findings In fact, that the Feng ultimately Cabbage Story originated from an artist who started placing cabbages on leashes as part of his artistic work. Other than Leidig' s (See id. 40:21-41:9.) self- serving and discredited testimony, which is plainly insufficient to support a motion for summary judgment, see Celle, 209 F.3d at 188, Plaintiffs offer no evidence regarding the Cabbage Story's veracity. Even CEN's employees could not trace or verify any relevant quotes or sources. Thus, the Court finds that Statement One regarding the Cabbage Story is at least substantially true and there are no genuine issues of material fact regarding its falsity. 21 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 22 of 35 B. STATEMENT TWO The Article covers CEN' s Sashimi Tapeworm Story and claims that CEN failed to alert its customers that the website Snopes debunked the story. BuzzFeed, Snopes accompanying the (Complaint 11 38-44.) According to reported Sashimi that certain x-ray photographs Tapeworm Story were "similar to those included in a 2014 case report published by the British Medical Journal that dealt with a man who contracted a rare case of disseminated cysticercosis through the consumption of uncooked pork (with no mention of raw fish) To Plaintiffs start, never argue " (Id. 1 38.) that BuzzFeed's reporting on Snopes' findings was inaccurate, regardless of the findings' claims underlying regarding assessing the Cabbage Story, Statement truth. Two Necessarily must fail. then, But Sashimi Tapeworm Story itself, their even when as with the Plaintiffs do not offer evidence supporting the veracity of their version. Although Plaintiffs' reporting database listed Leidig as the story's writer, he explained that Feng would have been the one to speak to the doctors mentioned in the story. (See April 2018 Leidig Dep. Tr. 418:2425: 16.) However, Feng stated that he did not contact any doctors in China for this story and, corroborate Leidig's testimony. 22 once again, (See Feng Dep. could not Tr. 92:20- Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 23 of 35 94:21.) Plaintiffs never claim to have sent a correction to their subscribers. Plaintiffs fail to provide any support for their position that BuzzFeed's reporting on the Sashimi Tapeworm Story was false. regarding Thus, the the Court finds that Statement Two Tapeworm Sashimi Story is at least substantially true and there are no genuine issues of material fact regarding its falsity. C. STATEMENT THREE Next, the Article describes the Pink Kitten Story, in which Plaintiffs wrote that Lenina's pet kitten died as a result of being dyed pink. (Complaint ,, 46-48.) BuzzFeed' s Tom Phillips ("Phillips") authored this part of the Article, relying on the reporting of an online authentication website, Gawker's Antiviral. According to Phillips, Gawker's Antiviral reported that Lenina "had posted pictures of her kitten on social media (very much alive)." 105 ,, 24-2 9; id. Ex. 10.) ("Phillips Deel.," Dkt. No. Phillips relied Antiviral because he found the website on Gawker' s "to be particularly good at verifying viral news and [it] had a great reputation for this kind of work." reviewed the (Id. photographic Antiviral relied. , 26.) evidence (Id.) 23 He also independently upon which Gawker's Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 24 of 35 The most straightforward reading of Statement Three is simply as a summary of Gawker's Antiviral findings regarding the Pink Kitten Story. BuzzFeed' s Tapeworm summary on Story, Much like situation regarding findings Snopes' because the Plaintiffs about do not the Sashimi contest Article's summary of Gawker's Antiviral findings the (regardless of their underlying truth), they fail to show the statements are false for the purposes of their libel claims. However, another, more strained, reading of the Article is that BuzzFeed's repetition of Gawker's Antiviral findings is an independent evaluating the favorable to falsity. assertions Article in Plaintiffs, this by BuzzFeed. light, Plaintiffs In Statement Three, which still Even is the cannot Buzz Feed summarizes when most show Gawker' s Antiviral's findings that "[t]he kitten was not dead. Lenina was in fact simply posting pictures of her -- very much alive -- kit ten on social media. [T] his appears to be a situation where CEN sold a false (and potentially defamatory) story Nor has there been any apparent attempt to correct the story since it was proved false." (Complaint 1 46.) The relevant factual assertions from Statement Three are that: (1) the kitten was alive, and this fact is evident from the photos posted by Lenina; the kitten was dead; and (2) CEN sold a false story that (3) 24 there has been no apparent Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 25 of 35 attempt to correct the story despite its being false. Plaintiffs must show that there is a material issue of fact regarding the falsity of all three of these statements. Regarding the first two assertions, Plaintiffs present no evidence to show that Lenina's kitten was dead at the time they reported the Pink Kitten Story. Plaintiffs cannot even demonstrate that they investigated the kitten's status before writing again) the Pink Kitten Story. That is, Plaintiffs (once could not depend on their own reporting database to determine who wrote contents. (See April the 2018 story and who Leidig Dep. could Tr. verify its 370:13-373:13, 381:23-382:15; id. Ex. 76.) Plaintiffs also do not contest the third assertion. a book entitled Buzz Bottom Feeders, In which was written by Leidig and intended to refute the Article (see id. 299:18- 301:7), Plaintiffs acknowledge that to "issue a correction is to admit a mistake was made, and that makes nervous[,]" and which is why their related story, clients Pretty in Pink Kitten is Still Alive Claims Star, was simply a "follow- up," and not a correction. (See id. Ex. 64 at 13, 22.) Thus, the part of Statement Three in which BuzzFeed claims that CEN never corrected the Pink Kitten Story is substantially true. In sum, Plaintiffs provide no evidence to refute Gawker's Antiviral's or BuzzFeed's reporting that the kitten 25 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 26 of 35 was alive when the Pink Kitten Story was first published. Plaintiffs also acknowledge that the second story by CEN is simply a "follow-up" as opposed to a correction. Thus, Plaintiffs fail to point to a genuine issue of material fact in relation to the falsity of Statement Three. D. STATEMENT FOUR In Statement Four, BuzzFeed asserts that CEN "appears" to have copied "photos, invented a inserted false names for the women, newsworthy narrative, credited a nonexistent photographer, and fabricated four sets of quotes to fill out the text." assertions 1 (Complaint through the 55.) BuzzFeed declaration of supports Craig those Silverman ("Silverman"), a journalist who contacted Gene Oryx ("Oryx"), the photographer who took the photos of the nude women that CEN used in the story. (See "Silverman Deel.," Dkt. No. 108 11 42-43.) Oryx told Silverman that CEN published incorrect names for both the women and himself in the Nude Women Story. (See id.) Plaintiffs deposition, do not refute those facts. During his Leidig could not provide any details regarding the Nude Women Story, including the source of the quotes that were used in CEN' s reporting of the story. Leidig Dep. Tr. 343:12-348:16.) 26 Leidig (See April 2018 assumed that such Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 27 of 35 details, including the names of the women as reported by CEN, arose from other Russian media outlets. declaration of on exclusively rely Plaintiffs Fleming Emil (Id. 348:11-16.) Hansen conclusory the ("Hansen") , originally filed in connection with Plaintiffs' summary judgment. ( See "Hansen Deel. , " Dkt. No. the Plaintiffs declaration, claim that they which was motion for 19.) Ci ting were merely parroting Russian media reports, and did not falsify names or quotes. (See Opposition at 4.) Plaintiffs further assert that "the professional photographer contacted by BuzzFeed wasn't the only one taking pictures that day" and CEN did not use Oryx's photographs. (Id.) Upon examination, Hansen's three-page declaration proves to be unreliable and, of greater concern for Plaintiffs, unhelpful to them. Hansen asserts that CEN picked up the story from Russian photographers media. CEN media who outlets and effectively that seeded there the story were other for local (Hansen Deel. 11 4-6.) But Hansen never refutes that used Oryx's photograph. Further, despite describing widespread coverage of the Nude Women Story in Russian media, Hansen attaches only a single example from a Russian website allegedly covering the episode. is (See id. Ex. 2.) That example accompanied by an unauthenticated machine translation, which does not include any of the critical details the Article 27 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 28 of 35 claims CEN made up. (Compare id. Ex. 2, with Complaint~ 55 and April 2018 Leidig Dep. Tr. Ex. 71.) even if there were other photographers covering Thus, the story, Plaintiffs do not present any evidence to substantiate the origin of the names or quotes CEN reported let alone that they are accurate. in the Nude Women Story The photograph used in the CEN story is clearly attributable ~~ to Oryx (see Silverman Deel. 43-46; id. Ex. 15), and it is irrelevant that there were other photographers present if CEN did not speak with them or use their photographs. Hence, the Court finds that Stat~ment Four is substantially true, and there is no genuine issue of material fact in relation to its falsity. E. STATEMENT FIVE In Statement Five, BuzzFeed questions how Plaintiffs managed to get a quote for CEN's Two-Headed Goat Story from the farmer when local news agencies were unable to do so, implying ~ 62.) that the Silverman, quotes are who wrote fabricated. this (See portion of Complaint the Article, traced the photograph of the goat published in the CEN story to Xinhua News Agency, story, which had first reported the same but without some of the quotes that appeared in the CEN version. (See Silverman Deel. ~~ 33-35.) Silverman also consulted with "an expert in digital photo forensics," 28 who Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 29 of 35 concluded that the photograph was "either a digital composite or a series of selective enhancements." (Id. , , 36-40.) Unsurprisingly, Leidig stated in his depositions that he does not know where the quotes in the Two-Headed Goat Story came from. (See April 2018 Leidig Dep. Tr. 444:17-445:22.) Further, CEN's attempt to verify the story failed. After the Article was published, Feng was unable to verify CEN's reporting or find any of the disputed quotes in the Article, even though he allegedly managed to find other local-media interviews with the farmer that he translated which did not contain the details CEN reported. 144:7.) Under these circumstances, (See Feng Dep. Tr. 142:17it does not appear that anyone at CEN ever spoke directly with the farmer. Plaintiffs fail to provide any support for their position that BuzzFeed's reporting on the Two-Headed Goat Story was false. Thus, the Court finds that Statement Five is substantially true and there are no genuine issues of material fact regarding its falsity. F. STATEMENT SIX not The remaining statements, including Statement Six, address or specific stories reports by do Plaintiffs. Instead, they are broader statements about the operations of Plaintiffs, and, in some sense, suggest reasonable inferences of conclusions that follow from BuzzFeed's reporting on the 29 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 30 of 35 veracity of Article. the individual CEN stories highlighted in the (See Complaint 11 1, 7, 33.) Statement Six allegedly implies that, because Plaintiffs suffered financial losses "after 9/11" and "seemingly never recovered, . it appear[ed]" Leidig launched these various news websites through which Plaintiffs "[scoured] for images and posts on social networks that [Plaintiffs] could weave a story around in order to hit up old clients with a new kind of content." 8.) ( See Complaint 1 7. ' see also Dkt. No. 1-1 at 2 Plaintiffs fail to produce any evidence supporting their allegations that the facts or implied facts in Statement Six are false. On the other hand, BuzzFeed supports Statement Six with Leidig's own words. Leidig wrote about CEN's origins in an article dated March 14, 2013. (See "Press Gazette Article," The use of speculative language such as "seemingly" and "appears" indicates that Statement Six could be construed as one of opinion rather than fact. See, ~ ' Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC, 151 F. Supp. 3d 287, 293-94 (E.D.N.Y. 2015) (rhetorical indicators such as the use of "appeared to be," "might well be," "could well happen," and "should be" "signal presumptions and predictions rather than facts" ( internal quotation marks omitted)); Biro, 883 F. Supp. 2d at 460 ( "Often, statements of 'rhetorical hyperbole' or 'imaginative expression' are held not actionable, because they 'cannot reasonably be interpreted as stating actual facts' that could be proved false." (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 25 (1990))). Although BuzzFeed never raised this argument, determining a statement's falsity necessarily requires that the Court first determine whether the statement conveys fact (and is verifiable) or opinion (and is non-verifiable). Nevertheless, even though the facts are fully developed and Plaintiffs thus would not suffer any prejudice from a ruling regarding whether Statement Six constitutes an opinion, the Court declines to rule against Plaintiffs on grounds not explicitly raised by BuzzFeed. See, ~ ' In re 650 Fifth Ave. & Related Props., 830 F.3d 66, 96-97 (2d Cir. 2016). 2 30 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 31 of 35 April 2018 Leidig Dep. Article, Leidig Tr. confirmed Ex. that 19.) he In the Press Gazette founded CEN, in part, because of the financial difficulties arising from reliance on original content. Thus, he changed his business model as "there was no longer value in original content, and that was because of the competition from the internet." These statements support the part of (Id. at 7. ) Statement Six which claims that Plaintiffs altered their business model in the face of financial difficulties. As for the remainder of Statement Six, Plaintiffs claim that it implies that Plaintiffs are in the fabricating and selling fake news stories" "business of (see Complaint~ 8), but do not even attempt to make the "especially rigorous showing" that implication Article. BuzzFeed beyond the "intend[ed]" specific or stories "endorse[d]" that covered the in Biro, 883 F. Supp. 2d at 465-66. Because Plaintiffs are unable to refute BuzzFeed's specific factual claims in the Article, in Statement they also cannot refute the more general claim Six. Consequently, the Court finds that Plaintiffs are unable to meet their burden of demonstrating a genuine issue of fact regarding the falsity of Statement Six. 31 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 32 of 35 G. STATEMENT SEVEN Statement Seven implies part because "CEN' s someone no that Complaint 11 stories one 33-34.) else Of that CEN falsifies frequently contain lines could course, persuade as is to talk." apparent discussion of Statements One through Five above, have presented no quotes evidence to refute a from in from ( See the Plaintiffs single specific instance in the Article where BuzzFeed alleges CEN falsified a quote. Thus, Plaintiffs must rely on self-serving blanket denials that they do not falsify quotes. Deel.," Dkt. No. 18 1 (See, ~ , "Leidig 2; "Martinez Dep.," Dkt. No. 104-17 at 58:25-59:9; see also Opposition at 3-4.) However, as the Court has explained, such blanket denials are inadequate. See Celle, 209 F.3d at 188. Plaintiffs fail to provide any support that Statement Seven was false. Thus, the Court finds that Statement Seven is substantially true and there are no genuine issues of material fact regarding its falsity. H. STATEMENT EIGHT Plaintiffs allege that the headline of the Article -"The King of Bullsh*t News," intends and asserts that Plaintiffs are, in fact, "The King of Bullshit News" and that Plaintiffs are "in the business of publishing news articles presented as true that are false, 32 and known to be false by Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 33 of 35 [Plaintiffs], and that [Plaintiffs] are largest purveyors of such articles in the world." (Complaint 11 1-3.) At best, any defamatory fact gleaned from this headline manifests an implication supported by the substantial truth of the Article itself. Much as is the case regarding with Statements Six and Seven, however, Plaintiffs fail to specify how the headline implies any defamatory fact the statement embodies that is not contained in the rest of the Article. The only possible additional defamatory fact is that Plaintiffs read, without any support, the reference to "king" in the headline interpretation to mean derives not "largest." from the In context, actual text such of an the headline, but from the hyperbolic spin Plaintiffs put on it, especially in their reference to "largest purveyors in the world." (Id.) But, even if this construction reflected a fair reading, the difference between being the "largest" or a "large" purveyor of such news stories is immaterial in the context of this Article. See Tannerite, 864 F.3d at 242-43. Such fine distinctions between "largest" and "large" are likely to be lost on the reader considering the "substantial 33 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 34 of 35 truth" of the facts and reporting in the Article. See id. at 243. Because Plaintiffs Statement Eight is false, are unable to demonstrate that the Court finds that there are no genuine issues of material fact regarding its falsity. * * * For each Plaintiffs' of libel the eight claims, statements BuzzFeed has that shown comprise that no reasonable juror could find the statement or its reasonable implications false. Because falsity is a required element of Plaintiffs' libel claims, the Court must enter judgment in favor of BuzzFeed. 34 Case 1:16-cv-00542-VM-GWG Document 120 Filed 03/27/19 Page 35 of 35 IV. ORDER Accordingly, it is hereby ORDERED that the motion of defendant BuzzFeed Inc. for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Dkt. herein by brought Nos. 101, plaintiffs 102) dismissing the action Michael Leidig and Central European News Ltd is GRANTED. The Clerk of the Court is directed to terminate any pending motions and to close this case. SO ORDERED. Dated: New York, New York 27 March 2019 ~~ U.S.D.J. 35