Further update: after the case was reversed and remanded, the trial court again granted summary judgment to WBNS on the Andersons’ defamation claim, and on March 29, 2021, the Tenth District Court of Appeals again reversed, finding an issue of fact as to whether WBNS acted negligently in ascertaining the defamatory potential of its newscasts and internet story. On June 8, 2021, by a vote of 5-1 with Justice Brunner not participating, the Supreme Court of Ohio declined to hear the case again.

Case Background

On January 10, 2016, the Columbus Police Department prepared a Media Information report about a robbery at a Columbus waterpark in which an 8-year-old girl was robbed of her hoverboard at gunpoint.  No identifying information was provided about the suspects. Two black and white photographs were attached to the report. Pertinent here was the second photograph (“hallway photograph”) taken from a security camera, showing two men and one woman entering a hotel hallway. On January 20, 2016, the police emailed the Media Information report and the two photographs to a number of media outlets, including WBNS.

Relying on the Media Information report, WBNS staff prepared news items for the station’s regular CrimeTracker 10 news feature. During its 5 a.m. newscast, WBNS showed the hallway photograph and told viewers the police hoped they recognized the two men who robbed an 8-year-old girl at gunpoint in the parking lot of the waterpark, taking off in a P-T cruiser. A similar story, accompanied by the hallway photograph, ran during the 6  a.m. news.

In addition to the two newscasts, WBNS also posted an article on its website and Facebook page, placing the hallway photograph directly beneath the headline “Robbers Put Gun to Child’s Head and Steal Hoverboard.” The article contained more details about the robbery.

Nanita Williams was at home watching WBNS and recognized her three children Aaron, Aaronanan, and Arron as the individuals in the hallway photograph. She became extremely upset. Her children assured her they had nothing to do with the robbery and were at the waterpark only to deliver dinner to Aaronanan’s boyfriend, who worked there.

Williams and her husband Willie Anderson took their three children to police headquarters that morning to resolve the matter.  Later that day the police issued an update to its media information sheet informing the media outlets that after further investigation the police found the individuals in the hallway photograph were not suspects in the robbery and to discontinue the use of any police material to the contrary. After receiving this update WBNS removed the hallway photograph from its website and Facebook page.

The Lawsuit

Pertinent here, the Andersons sued WBNS for defamation. They argued that WBNS had acting negligently in publishing the newscast and Facebook page because WBNS substantially altered the Media Information report, changing them from suspects into robbers. WBNS argued it reasonably relied on the Media Information report and could not be found negligent in publishing the alleged defamatory statements.  The trial court granted summary judgment to WBNS on the grounds that a reasonable reader would not interpret its statements as defamatory, even though WBNS did not move for summary judgment on that element.

The First Appeal

The Tenth District Court of Appeals reversed, finding a genuine issue of material fact on whether WBNS had acted negligently in publishing the alleged defamatory statements. WBNS appealed to the Supreme Court of Ohio.  In an opinion written by Justice Donnelly, the Court held that the appeals court had applied the wrong standard in this private figure defamation case and sent the case back to the appeals court to apply the correct standard. Read the analysis of the merit decision here.

On Remand from the Supreme Court of Ohio

On remand from the Supreme Court of Ohio, on December 29, 2020, in an opinion authored by Judge William Klatt, joined by Judges Betsy Luper Shuster and Jennifer Brunner, the Court of Appeals again reversed the trial court and remanded the case for further proceedings.

The proper fault standard in a private-figure defamation case in Ohio was set forth in Landsdowne v. Beacon Journal Publishing Co., which requires a showing by clear and convincing evidence that “the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication.”

The elements of a defamation action against a media actor are that the organization made a false statement, the statement was defamatory, the organization published the statement, the plaintiff was harmed as a proximate result of the publication, and the organization acted with the requisite degree of fault in publishing the information. The only issue in this case is the last element-fault.

In its opinion, the Tenth District reviews the U.S. Supreme Court defamation jurisprudence. Pertinent here is the holding in Gertz v. Robert Welch, Inc. that in a private figure defamation case, states are free to decide the standard of liability as long as they do not impose strict liability. In Ohio, that standard is ordinary negligence in actions involving a private individual defamed in a matter of public concern, both as to the truth or falsity and the defamatory nature of the publication. This position is consistent with the Second Restatement of Torts and other states. By case law, the Supreme Court of Ohio raised the standard of proof from preponderance of the evidence to clear and convincing evidence.

WBNS argued that it relied on the Media Information report, and therefore acted reasonably in trying to discover the truth or falsity of its newscasts and internet story. The Andersons argued that the Media Information report identified them as suspects, while WBNS identified them as the “men who robbed an 8-year-old girl at gunpoint” and intimated they were robbers. The Andersons further argued that WBNS was negligent in failing to compare the content of its stories to the Media Information report and in failing to recognize that it had published misleading information.

“Neither the Media Information report nor the hallway photograph established the individuals in the hallway photograph as ‘robbers.’ WBNS, nevertheless, displayed the hallway photograph while conveying the message that the individuals in the photograph—the Anderson siblings—had robbed an 8-year-old girl at gunpoint. Given that WBNS’ reporting deviated from the information contained in the Media Information report, we conclude that a question of fact remains regarding whether WBNS acted reasonably to ensure the accuracy of its reporting,” wrote opinion author Klatt.

The appeals court goes on to note that WBNS does not directly contest this conclusion, but instead argues it should prevail because the statements at issue were not defamatory. But the appeals court notes that WBNS did not move for summary judgment on that element. Rather, it moved for summary judgment solely on the fault element, arguing that it did not act negligently in the publication of this story.

WBNS argues that its statements identified the Andersons only as suspects in the armed robbery of the 8-year-old, and that no reasonable broadcaster could foresee the defamatory potential of this. But the appeals court emphatically disagrees:

“Robbing a child at gunpoint for the child’s toy is reprehensible behavior. Consequently, publicly identifying individuals as suspects in such a crime conceivably invites public hatred, contempt, ridicule, shame, and disgrace as to those individuals…Thus, a question of fact remains regarding whether the harmful potential of WBNS’ statements should have been apparent to a reasonable broadcaster.”

Concluding Observations

The court of appeals decision really tracks the questions asked by Justice Stewart during the Supreme Court oral argument of this case.  Justice Stewart asked whether it was at all problematic that the station listed the pictures of the men as robbers when the police report did not say that, noting that it was not as if the station took exactly what the police report said, because the police report always used the term suspects. She really pressed the point that the media referred to the men as robbers rather than suspected robbers. She asked whether the media is obligated to print what the police or law enforcement gives them. Justice DeWine asked some similar questions, noting the disparity between what the Media Information report said and what was broadcast.

Defamation cases are notoriously difficult for plaintiffs, especially against media defendants, because of the breathing room society wants to give to the press and the free expression of ideas.  It will be interesting to see what a jury does with this case.  If the case actually gets to a jury, I’m predicting a win for the Andersons. The blog will continue to follow this case.