Page 3 - Litigation

NYLJ.COM |
Litigation | MONDAY, DECEMBER 14, 2015 | S3

between assertions of fact or “mixed opin- porate operator of multiple Sandals resorts in rooms “are often the repository of a wide pool at a residence belonging to a member

ion” from non-actionable expressions of pure Jamaica had failed to establish an actionable range of casual, emotive, and imprecise of the local Town Board.
opinion: “(1) whether the speciic language in claim of defamation. The claim was based on speech,” and that the online “recipients of The Second Department deemed the
issue has a precise meaning which is readily a published email accusing Sandals of dis- [offensive] statements do not necessarily accusation “Dave LeBlanc is a terrorist” as
understood; (2) whether the statements are criminatory hiring practices with regard to attribute the same level of credence to non-actionable inasmuch as it was likely to
capable of being proven true or false; and its employment of only foreigners for senior the statements [that] they would accord be perceived as “‘rhetorical hyperbole, a vig-
(3) whether either the full context of the com- management positions and native Jamaicans to statements made in other contexts.”13
orous epithet.” The court, consistent with
munication in which the statement appears for only menial jobs at its resorts. The court Nevertheless, the First Department did the First Department’s decision in Sandals,
or the broader social context and surround- in Sandals explained that a meritorious cause note that “[t]his observation is in no way indicated that its conclusion was “especially
ing circumstances are such as to signal [to] of action was not stated because the allegedly intended to immunize emails the focus and apt in the digital age,” where readers afford

readers or listeners that what is being read defamatory email constituted constitutionally purpose of which are to disseminate injurious less credence to Internet postings than
or heard is likely to be opinion, not fact.”9 protected opinion.
falsehoods about their subjects”14—therefore remarks in other contexts.16 Nevertheless,
Courts have paid particular attention to the In analyzing whether the challenged email signaling that it was not under any circum- the Second Department held the allegation
context of the communication in the Inter- in Sandals was a non-actionable expression stances establishing a blanket rule that “that the plaintiff put a severed horse head
net defamation arena in order “to determine of opinion or a factual statement, the First Internet postings are per se non-actionable in a Town Board member’s swimming pool,”
whether the reasonable reader would have Department relied primarily on the “broader statements of pure opinion.
to be defamatory per se.
believed that the challenged statements were social context into which the [email] its,” So while under Sandals and LeBlanc
conveying facts.”10
noting: “The culture of Internet communica- plaintiffs currently face increased dificulty
Second Department’s Adoption of ‘Sandals’
tions, as distinct from that of print media in establishing that an online posting that
‘Sandals’
such as newspapers and magazines, has been In 2012, the Second Department endorsed could be construed either as a statement of
characterized as encouraging a free-wheeling, the principles set forth in Sandals, includ- fact or opinion is actionable, LeBlanc also
Since 2011 the First Department case anything-goes writing style.”12 In this regard, ing that “readers give less credence to the demonstrates that an unambiguously fac-
of Sandals Resorts International Limited v. the court in Sandals heeded the suggestion allegedly defamatory Internet communica- tual and harmful allegation will be deemed
Google11 has been cited and generally accept- of a 2002 law review note which observed:
tions than they would to statements made an actionable statement of fact or mixed
ed by other New York courts as articulating in other milieus.”
opinion despite its appearance on an Inter-
the proper legal analysis for determining in It is . imperative that courts learn to view Speciically, in LeBlanc v. Skinner,15 the net chat forum.
a defamation lawsuit whether speech on the libel allegations within the unique context plaintiff, a political opponent of defendants,

Internet constitutes actionable fact or mixed of the Internet. In determining whether alleged, inter alia, that statements posted Is the Standard Appropriate?
opinion or non-actionable expression of pure a plaintiff’s complaint includes a pub- by defendants on a website administered
opinion.
lished “false and defamatory statement by the local newspaper were defamatory It is true that the Internet presents a unique
In Sandals, the First Department afirmed concerning another,” commentators have inasmuch as they accused the plaintiff of context within which courts must evaluate
the New York County Supreme Court’s dis- argued that the defamatory import of the being a terrorist and, either expressly or potentially defamatory content. But it is
missal of a petition for pre-action disclosure in communication must be viewed in light impliedly, of being responsible for dumping uncertain whether the notion—adopted by
an Internet defamation case, inding the cor-
of the fact that bulletin boards and chat
a severed horse head into the swimming
the First and Second Depart-
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