07 Mar 7 March 2023
In this issue of zoom-in brief, Vanessa Bryant’s privacy action against LA County ends in multi-million dollar settlement; Brexiteer businessman Arron Banks partially wins libel appeal against Carole Cadwalladr over TED Talk; billionaire Fox News owner, Rupert Murdoch, submits filings that Fox News stars endorsed Trump’s “stolen election” claims; whilst Trump ally, Devin Nunes, is unsuccessful in his Florida libel action against CNN news anchor Jake Tapper.
Multi-million-dollar payment for basketball star Kobe Bryant’s widow after the publication of gruesome photographs of human remains
Vanessa Bryant is to receive nearly $29million (£24million) following the circulation of graphic photographs of the helicopter crash that killed her husband and daughter.
Five-time NBA champion and basketball star Kobe, 41, and Gianna, 13, were travelling to a basketball game in a helicopter with seven other people on 26 January 2020. Tragically, the helicopter crashed in foggy conditions outside LA killing all on board. When emergency responders attended the scene, eight employees of LA County’s fire and sheriff’s departments shared graphic photographs of human remains from the crash – with one officer accused of taking up to 100 photographs on his phone.
Vanessa Bryant and her three surviving daughters sued saying the photographs “of the dead children, parents, and coaches” were taken as gruesome “souvenirs”. She alleged that the officers morbidly traded photographs and that a sheriff even shared photographs of Kobe’s body with a bartender.
Vanessa has been successful in both her federal and state level claims for negligence and invasion of privacy. She won the former after an 11-day trial last August, when a jury awarded her $15million. LA County has now settled for a further $13.5million meaning she is to receive almost $29million.
Had these events taken place in the UK rather than the US, the outcome of any legal claim would likely have been different for two reasons: first, the photographs in this case were of Kobe and Gianna – not Vanessa Bryant – and they were taken after Kobe and Gianna were already deceased. Where a person is dead at the time their privacy is infringed, a claim brought on their behalf by a relative to vindicate the dead person’s privacy rights would be unlikely to be viable under UK law. For Vanessa to be able to bring a claim for damages based in privacy law in the UK, she would need to establish that the publication engaged her own privacy rights.
Secondly, damages for infringements of privacy in the US dwarf those in the UK. The typical damages awarded by courts in the UK are five-figure sums. The very highest pay-outs are in the region of £200,000 – £250,000 and such awards are rare. Examples include Sadie Frost for prolonged phone-hacking by Mirror Group Newspapers in 2015, and singer Cliff Richard after the BBC broadcast the police search of his home after he was (wrongly) accused of historical sex offences in 2018. Even adjusted for inflation, UK awards do not come remotely close to US pay-outs.
Brexiteer Arron Banks partially wins libel appeal against award-winning journalist Carole Cadwalladr
Businessman and Brexiteer Arron Banks has been partially vindicated in his controversial libel case against journalist Carole Cadwalladr.
Banks sued journalist Cadwalladr for libel over a TED Talk and a Tweet she posted in April 2019. Cadwalladr alleged that Banks had secretly broken the law on electoral funding by taking money from Russia and had lied about it: “And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government. “Her TED Talk has been viewed more than 5 million times and remains online.
On 29 April 2020 the Electoral Commission announced that a National Crime Agency investigation concluded there was no evidence to support the allegations against Banks. This is a key date after which Cadwalladr’s claims in the TED Talk were authoritatively debunked.
In June 2022 the High Court dismissed Bank’s claim, finding that before 29 April 2020 Cadwalladr could rely on the “public interest” defence because she “reasonably believed” her claims against Banks, and that after 29 April 2020 Banks had not suffered serious harm to his reputation. The Court reasoned that Bank’s reputation had not been harmed because Cadwalladr was speaking to persons in “her own echo chamber” “who wouldn’t have thought very much of Banks” and whose opinions were of “no consequence” him.
Banks appealed to the Court of Appeal, which handed down its decision on 28 February 2023. Three judges upheld Cadwalladr’s “public interest” defence until 29 April 2020, but found that Banks’ reputation was harmed by the TED Talk after that date – in so doing, it labelled the High Court’s reasoning as “unsound”. The result is that Cadwalladr could now have to pay Banks damages. The amount of those damages is yet to be determined.
Murdoch admits Fox News hosts endorsed Trump’s “stolen election” claim
Donald Trump’s claim that the 2020 US Presidential election was “stolen” and the subsequent storming of the US Capitol has had many legal repercussions – from impeachment proceedings against Trump himself to criminal prosecutions of his supporters. It has also resulted in libel proceedings against Fox News for its reporting of Trump’s claims.
Voting machine company Dominion Voting Systems has accused Fox News of maligning its reputation by “endorsing” Donald Trump’s claim that the 2020 election was stolen from him. Dominion has brought a $1.6billion (£1.3billion) defamation claim, arguing that the false and malicious rumours of voter fraud harmed its business. It alleges that the rumours peddled by Fox News’s on-air hosts included that Dominion’s voting machines could run a secret algorithm that switched votes from one candidate to another, and that the company was founded in Venezuela to help that country’s long-time leader, Hugo Chávez, fix elections.
To prove defamation, Dominion needs to successfully argue that Fox presented false information and did so with “actual malice” knowing it was untrue. Fox News denies defaming Dominion. It argues that the comments are protected under the constitutional right to free speech, and that it was reporting rather than supporting Trump’s allegations.
However, Fox News’s position seems precarious following a recent legal filing by Rupert Murdoch – the billionaire owner of Fox News, The Sun and the Wall Street Journal. Murdoch admitted that four of Fox News’s stars “endorsed” the false claims on-air, and he “would have liked us to be stronger in denouncing it, in hindsight”. Murdoch tried to distinguish between the hosts endorsing the false claims and Fox itself, but admitted that he made the decision not to keep election deniers off-air.
Murdoch’s revelations have been described as “stunning”, “damning” and “a bomb drop”. The word “endorsed” could be critical for Dominion in proving its case that Fox News knowingly spread false information.
Even if Fox News succeeds in defeating Dominion’s lawsuit, the admission that hosts endorsed false narratives could cause long-term reputational damage to the channel. There is, however, a question of how much Fox News’s viewers will actually learn about the case. Other US news organisations are covering the story, but Fox News has yet to report on it and remains the most popular cable news channel (having held the top spot for the past two years).
The main impact may be on Trump himself, as he attempts to shore up support for the 2024 Republican presidential nomination. He has not appeared on Fox News since September 2022 – whereas his rival nominees are frequent guests.
A jury trial is scheduled to begin in April. zoom-in will report on any development.
Trump ally unsuccessful in his libel claim against CNN
Former Congressman, ally of Donald Trump, and regular lawsuit instigator Devin Nunes has lost his defamation case against CNN and its anchor Jake Tapper. Nunes is the CEO of the social media platform Truth Social – a platform founded by Trump in October 2021 after Twitter suspended his account.
Nunes sued over a segment on CNN Tonight with Jake Tapper broadcast on 31 October 2022. In the segment Tapper commented on the “spreading” “of offensive and false conspiracy theories” following the violent attack on 82-year-old Paul Pelosi, husband of the then-Speaker of the House of Congress. According to Tapper, the conspiracy theories included “the complete and utter lie, the deranged smear that Paul Pelosi and the attacker…were in a sexual relationship”. As part of the segment Tapper displayed two of Nunes’ posts on Truth Social said to “smear” Pelosi.
Nunes brought a libel claim in the state of Florida alleging that he did not peddle conspiracy theories, but – in fact – had condemned the attack on Pelosi two days before CNN’s broadcast. Accordingly, Nunes argued Tapper’s statements were false and defamatory.
Nunes’ decision to bring his case in Florida proved misguided. Tapper is resident in Washington DC and the segment was aired from CNN’s Washington DC Studio. Nothing Tapper discussed on-air specifically related to Florida and Tapper never travelled to Florida in relation to the segment. In other words, the libel case had no obvious connection with Florida. On 1 March 2023 a Florida District Court dismissed the case for lack of jurisdiction.
Nunes is no stranger to the courts. In recent years, he has also filed defamation claims against multiple other media organisations.
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