Chang-Sin Lee v. Dong-A Ilbo

FRANK A. KAUFMAN, Senior District Judge,

dissenting:

For the reasons stated by Judge Ervin, I agree with the majority that it is “unwise to provide a blanket privilege to those who report the activities of foreign governments.” Ante at 879 (emphasis added). However, while the issue certainly is a close one, in my view the recognition rather than rejection of a qualified privilege would strike a more appropriate balance between the need to protect an individual’s reputation and the American public’s need to have knowledge of the acts of foreign governments. Accordingly, I dissent from the majority’s reversal of the district court’s grant of summary judgment. For the reasons stated in Part II of this opinion, I would, however, remand for further proceedings concerning plaintiff’s claims against the seven defendants to determine whether proper attribution was made by each of them.

I.

The majority states that courts should not involve themselves in assessing the reli*881ability and openness of the operations of a foreign government in order to determine whether, in a given case, the fair report privilege should apply. I agree that courts should always keep that problem in mind. But that does not necessarily mean that courts are not fully capable of assessing the importance of a particular publication to a particular audience. By relying on that criterion, courts would be able to extend the privilege on a case-by-case basis as the need arises. As the current lack of case law in this area indicates, the issue of the fair report privilege in the foreign government context would hardly appear to arise often enough to make a case-by-case application unduly burdensome. Such an ad hoc approach is not new to defamation law; for example, application of the public figure doctrine presents “a question of law to be resolved by the court” in each case in which the issue is present. Dameron v. Washington Magazine, Inc., 779 F.2d 736, 740-43 (D.C.Cir.1985), cert. denied, 476 U.S. 1141, 106 S.Ct. 2247, 90 L.Ed.2d 693 (1986). See also id. at 740-43.1

As Judge Ervin has written, ante at 878, there are “three policy rationales [which] support the official report privilege: agency, public supervision, and the public’s right to know.” In a given context, one of those rationales may well be given more weight than the others. See Medico v. Time, Inc., 643 F.2d 134, 142 (3d Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981); Note, Privilege to Republish Defamation, 64 Colum.L.Rev. 1102, 1102 (1964). In this case, as the majority opinion suggests, see ante at 7, the importance of the public supervision rationale does not loom too large. However, at least in the United States, the fact that citizens in one state have no direct ability to supervise state governmental activity in another state apparently does not affect the application of the official report privilege when the report, although issued by the government of the first state, is republished in the second state. Also, as the success of many international human rights groups demonstrates, the importance of indirect supervision, i.e., public pressure, is a factor to be considered. With regard to the agency rationale, its importance per se is questionable whenever the government report is not available for public inspection, whether the government be our own or foreign. See, e.g., Medico, 643 F.2d at 140-41 & n. 23 (discussing the inapplicability of the agency rationale in a case involving republishing of secret FBI report); see also Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193, 205-06, 209 (1959) (concerning the republication of secret U.S. Senate proceeding)-

Because the agency and public supervision rationales are less important in a case such as this one, it is the third factor, the public’s right to know, which requires the most attention. The majority asserts that the privilege should not be extended to reports of foreign governments because those governments are “not necessarily familiar, open, reliable or accountable.” Ante at 879. Presumably, the reports is*882sued by those governments are not sufficiently trustworthy, and, therefore, a greater risk of defamation inheres in publishing them. However, that risk alone should not outweigh the public’s interest in the dissemination of that information. See Note, supra, at 1109, 1112, 1115. The majority seems to relate the extent of that risk to the conclusion that the American reading public will assume that the official reports of such unreliable governments are trustworthy. While that assumption may sometimes be well-grounded, it would seem quite likely that many American readers will often tend to discredit whatever a foreign government has to say when that government is perceived in this country as not treating its citizens fairly by American standards. Also, as discussed in Part II infra, in a case in which the qualified privilege is otherwise available the requirement of proper attribution will inform the reader of the source of the information.

I agree with the majority that courts in the United States should try to avoid becoming involved in determining whether a given foreign government is open and reliable enough to warrant extending the privilege to the republication of a press release of that government. Such an inquiry could well implicate the credibility of the foreign government and its agencies. Cf. Webb v. Times Publishing Co., Ltd., [1960] 2 Q.B. 535, 563. If a qualified privilege is recognized and the major criterion for its application depends upon the importance of the publication to the American reader, a court may have to walk a very thin line in order to avoid violating principles of comity. But, in any event, a complete refusal to recognize the privilege will not solve the problem entirely. For if the qualified privilege is held not available as a matter of law or, under the standards suggested by this dissent, is determined not to be applicable in a given case, then, as Judge Ervin has noted, ante at 879, under Virginia law the burden will be on the plaintiff to prove falsity. That will require a given plaintiff not only to engage in pretrial discovery with regard to the issue of falsity, but, if trial is held, will cause that plaintiff to try to prove that the foreign government’s report was false.2 And, in a jury trial, that inquiry may be more difficult to control than an inquiry made by the court under the standard and procedure discussed in this dissent.

Webb v. Times Publishing Co., Ltd., [1960] 2 Q.B. 535 provides a framework for analyzing the public interest issue. Cynthia Webb, the plaintiff, was the former wife of Brian Hume. In 1950, Hume was tried in a British court for the murder of Stanley Setty. Webb testified on Hume’s behalf at the trial, and in the course of so doing she stated that she had never met the murder victim. 2 Q.B. at 537. Hume was subsequently acquitted of the murder charge, although he pleaded guilty to a lesser offense. Id. at 538. In 1959, Hume was again put on trial for a different murder, this time in Switzerland. During the Swiss trial, Hume testified that, although he and Webb were married at the time of the first trial and had had a child, the father of that child was actually Stanley Setty, the murder victim involved in the previous case. Id. at 537-38. An account of the Swiss trial, including the verbatim testimony concerning the relationship between Setty and Webb, was subsequently published in England by the defendant newspaper. Webb sued for defamation, claiming that a reader of the newspaper’s account of the Swiss trial would conclude that she had not only committed adultery with Setty but also had perjured herself at the British trial by testifying that she had never met Setty before. Id. at 538-39.

In its defense, the defendant newspaper argued that a blanket common law official report privilege protected its publication of the account of the Swiss trial, but that, in any event, a qualified privilege existed with respect to the particular facts in Webb. Id. at 553. After reviewing the five justifications commonly given for the privilege, see id. at 559-61,3 Justice Pearson focused *883upon the need for the court to engage in a “balancing operation” in which the court “balanc[es] the advantages to the public of the reporting of judicial proceedings against the detriment to individuals of being incidentally defamed.” Id. at 561. He noted that judicial proceedings in certain countries were not as fair or reliable as those in England, that such proceedings were sometimes subject to propagandist abuse by the governments of some countries, and that those two considerations increased the risk that incidental defamation would occur. Id. at 562. Justice Pearson concluded that, in terms of a blanket privilege, the differences between foreign and British judicial proceedings were great enough that the risk of an individual being incidentally defamed outweighed the public benefit resulting from the reporting of that proceeding in England. Id. But, continued Justice Pearson, in some circumstances the British public interest might well justify the reporting of a foreign judicial proceeding and the application in such a case of the defense of privilege, despite the incidental risk of defamation. See id. at 563-65.4 In such circumstances, it is not the presence or absence of the foreign government’s reliability which should control the applicability, vel non, of the privilege. See id. at 563; see also note 5, supra. Instead,

[o]ne has to look for a legitimate and proper interest as contrasted with an interest which is due to idle curiosity or a desire for gossip. There is not necessarily anything wrong in newspapers publishing news items which appeal only to idle curiosity or the desire for gossip. But, if they do so, there is not in the subject-matter any such legitimate and proper interest as is needed to confer privilege for an incidental defamation that may be involved.
There is thus a test available for deciding whether the subsect-matter is appropriate for conferring privilege. A report of the decision of the United States Supreme Court on an important question of commercial law has legitimate and proper interest. On the other hand, a report of a judicial proceeding wholly concerned with an alleged scandalous affair between Mrs. X and Mr. Y is unlikely to have such interest and is likely to appeal only to idle curiosity or a desire for gossip.

Webb, 2 Q.B. at 569-70 (emphasis added). In stating those extremes, Judge Pearson recognized that future cases might well involve subject matter of varying degrees of importance between such extremes. See id. at 570.

The majority opinion states that the burden of proving the falsity of the report’s content and negligence in its publication, which Virginia law imposes upon a plaintiff, adequately protects media defendants’ First Amendment rights. Ante at 879. That may well be an important consideration in certain types of defamation situations. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775-78, 106 S.Ct. 1558, 1563-65, 89 L.Ed.2d 783 (1986). In a given case, both plaintiff and defendant may find it *884equally difficult to obtain access to the facts necessary to establish the truth or falsity of the information contained in the republished report of a foreign government. But in a case such as this, when the media party is relatively small,5 it may not have the financial or logistical wherewithal to confirm the accuracy of the information in the report.6 Or, at the very least, it may not be able to do so with the speed necessary to make the publication of the report meaningful to its readership.7 In the heat of the moment, faced with the prospect of potentially devastating lawsuits on the one hand and the difficulty of confirming a story’s accuracy on the other, the media party may not find much comfort in the fact that, if the case goes to trial, the plaintiff may not be able to prove falsity.8 On balance, media defendants, especially the smaller ones which are targeted to specific audiences, may all too often decide not to publish.9 As a result, certain segments of the American public — such as the Korean-American public in this case — will be deprived of access to information of great importance to them.10 Under the circumstances, I conclude that this is the type of case in which .a qualified privilege for the fair republication of an official report of a foreign government should exist and be applied, subject only to the reservations stated in Part II of this opinion.

II.

There is a factual dispute as to whether some of the newspaper articles properly attributed the story to the two Korean agencies which issued the press release. To establish their right to rely on the qualified fair report privilege, appellees must establish (1) that the South Korean press release is an official report; (2) that it contains defamatory statements; (3) that the subject matter of the release is of public concern; (4) that an appellee’s account of the press release is fair and accurate; and (5) that the media properly attributed the source of the report. See Restatement *885(Second) of Torts § 611 (1977).11

All but one of these five requirements are met in this case. First, because the press release was issued by two agencies of the South Korean government, it appears clear that the press release is an official report. See Medico, 643 F.2d at 139-40; Hughes v. Washington Daily News Co., 193 F.2d 922, 923 (D.C.Cir.1952). Second, none of the parties appears to deny that the allegations contained in the release would be defamatory if proved at trial to be false. Third, for the reasons discussed by the majority and in Part I of this dissent, and as recognized by the district court, the subject matter of the report is of public concern. Fourth, appellant conceded in the district court that the various appel-lees’ accounts of the press release’s contents constitute impartial and accurate summaries of the press release. App. 54-55, 61, 62; see Mills v. Kingsport-Times News, 475 F.Supp. 1005, 1011 (W.D.Va.1979) (describing requirement of accurate summary under Virginia law). There is, however, an open issue, one apparently not specifically addressed by the district court: whether, with respect to each article, each of the appellees properly attributed the report to the Korean governmental agencies which issued it.

The issue of fair attribution is generally a question for the fact-finder; in the case at bar, that would be the jury, as plaintiff has prayed a jury trial. See Lavin v. New York News, Inc., 757 F.2d 1416, 1420 (3d Cir.1985). The attribution requirement is not met, and therefore the privilege will not attach, if

the report is written in such a manner that the average reader would be unlikely to understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding. It must be apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents or proceedings.

Dameron, 779 F.2d at 739 (emphasis added).

The attribution requirement is especially important in the context of the republication of the official reports of foreign governments because the proper attribution of such a report will tend to decrease the risk of incidental defamation. As Judge Mikva noted in Dameron:

[If there is no proper attribution,] the reader is left with the impression that the conclusion is that of the article’s author based on his own research — which may or may not have included government reports. Had the author attributed the report to its source, the reader would know that he was simply being informed of the [government agency’s] view and could then evaluate the statement accordingly. The defamatory potential of an unattributed statement of what is apparently an accepted fact presents a far different situation.

779 F.2d at 740 (emphasis added).

The record discloses that appropriate attribution is present with respect to the CVETC news broadcast and the articles published by the Korea Herald and the Sae Gae Times.12 As for the news stories car*886ried by the Dong-A libo, the Hankook Ilho, the Joong-Ang libo, the Cho-Sun libo, and the Korea Times, the appellees appear to admit that these articles contained no specific attribution. See Appellees’ Br. at 27. Accordingly, whether or not attribution is revealed by the overall context of the articles in question, see Dameron, 779 F.2d at 739, is a factual issue which not only has not been addressed by the district court but cannot, in any event, be determined by this court in the light of the record before us. Therefore remand to the district court for further proceedings as to the question of attribution concerning these four appel-lees13 would be needed if the qualified privilege approach set forth in Part I of this dissent were subscribed to — as it is not — by the majority.14

. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a private figure case, Justice Powell expressed concern about forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest". Id. at 346, 94 S.Ct. at 3010; see also id. at 345-46, 94 S.Ct. at 3009-10. However, in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), another private figure case, Justice O’Connor focused on the importance of the information being published. See id. at 774-78, 106 S.Ct. at 1562-65. Also, in his plurality opinion in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), Justice Powell discussed whether the information was of public or private concern. See id. at 761-63, 105 S.Ct. at 2946-47. And, in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), Justice White wrote: "Whether an employee’s speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. at 1690. Connick involves free speech in the employment context, not defamation. However, Justice White’s language in Connick was quoted with approval by Justice Powell in Dun & Bradstreet, 472 U.S. at 461, 105 S.Ct. at 2946, itself a defamation case. Thus, the Supreme Court has indicated that there may be occasions in the area of defamation law when a court needs to make determinations pursuant to a criterion of the type set forth in this dissent.

. See the discussion on the issue of burden of proof in the majority opinion, ante at 879.

. Those reasons are: (1) the fact that court proceedings were open to the public; (2) that the administration of justice concerns all per*883sons; (3) that the public should be educated about how justice is administered; (4) that even defamed persons may "be better off with fair and accurate reports than with rumours [sic] circulating," and (5) that the balancing of interests justified the extension of the privilege. Concluding that the first four of these reasons had very little force in the context of foreign judicial proceedings, see 2 Q.B. at 559-61, Justice Pearson emphasized the applicability of the fifth reason.

. In so holding, the British court relied on the proposition that the status of the governmental body issuing the report was not conclusive, citing Perera v. Peiris, [1949] A.C. 1 (P.C.). Perera involved an appeal to the British Privy Council from the then-British colony of Ceylon concerning a report issued by the government of Cey-Ion. The report was based on testimony taken in camera by a government commission investigating an alleged bribery scandal within the Ceylon government, and was reprinted in the Ceylon Daily News. The plaintiff, who had testified in the in camera proceedings, was described in the report as " ‘completely lacking in frankness,’ ” [1949] A.C. at 17, and subsequently sued the newspaper for libel. The Privy Council noted that a qualified privilege of fair report existed under the applicable Roman-Dutch law, which was quite similar to British law in this area, id. at 19-20, and concluded that the Ceylon public had a great interest in the contents set forth in the government’s report. Id. at 21-22. As in this case, the press release in Perera referred to a non-public proceeding.

. The following information about the media appellees would appear relevant. The public television station, WNVC-TV, is owned by ap-pellee CVETC. CVETC is a non-profit, noncommercial public station based in Falls Church, Virginia, with an approximate viewership of less than 19,000 persons. See App. 81K, 127. WNVC-TV's multi-language programming serves many ethnic communities in the metropolitan Washington, D.C. area.

By contrast, the newspaper appellees specifically target their publications at the Korean-American public. The Sae Gae Times is a weekly English-language publication printed exclusively in the United States. The remaining ap-pellees, although United States corporations, republish daily Korean language editions of major Korean daily newspapers for circulation in the United States. The Korean Herald is a two-person office and employs no reporters or editors. See App. 199. The record does not clearly indicate the size of the other appellees.

. The record discloses that at least two of the appellees simply did not have the resources necessary to confirm the accuracy of the press release. See App. 200, 218. Appellee Sae Gae Times, which comes out weekly, tried to verify the story, but by the time of publication, was only able to contact one of the persons mentioned in the story. See App. 274-75. That appellee subsequently did manage to get in touch with appellant and printed appellant's denial of the espionage charges. See App. 275.

. The publisher of the Korean Times, which also republishes the Hankook libo in the United States, testified during his deposition about the complaints received from the Hankook Ubo’s readership when stories from Korea are not reprinted as quickly as possible. App. 205.

. See ante at 879.

. By the terms of their publishing contracts, several of the appellees seemingly must either reprint verbatim a given edition of the Korean newspaper from which they receive their information, or cannot under the terms of the contract reprint anything at all. See App. 197, 205-06, 208-09, 220, 222. If by the terms of those contracts appellees may not eliminate articles the accuracy of which they cannot confirm, a choice not to reprint an official governmental report may of necessity prevent the republication of other nondefamatory information as well.

. Indeed, the record reflects that this was the express opinion of at least two of the appellees. See App. 264, 294. Furthermore, the story seemingly was of special interest to those persons with connections to Western Illinois University, where appellant was a student during the time the espionage ring was allegedly active.

. While the Restatement, as well as some cases, see, e.g., Lavin v. New York News, Inc., 757 F.2d 1416, 1420 (3d Cir.1985), perhaps fuse together the separate requirements of accurate reporting and proper attribution, or apply balancing considerations, other cases suggest that each of these two requirements may stand on its own feet and be independent of the other, and that a defendant claiming the privilege must prevail separately as to each requirement. See Dameron, 779 F.2d at 739; see also, e.g., Curtis Publishing Co. v. Vaughan, 278 F.2d 23, 28-29 (D.C.Cir.), cert. denied, 364 U.S. 822, 81 S.Ct. 57, 5 L.Ed.2d 51 (1960); Hughes v. Washington Daily News Co., 193 F.2d 922, 923 (D.C.Cir.1952) (citing state cases and terming issue "well-set-tied”). The latter view would appear preferable in the context of this case when one keeps in mind the closeness of the underlying issues involved.

. The CVETC broadcast was given by an employee of the Korean Broadcasting System, the state-sponsored television station in South Korea. In the course of summarizing the press release, the announcer specifically referred to the National Security and Planning Agency and the Military Security Command by name, and stated that these agencies had issued a “special announcement” about the student spy ring and had "released" information pertaining to the *886incident. See App. 182-83 (translation of broadcast).

The Korean Herald, which prints its stories in English, published two related articles as well as an editorial. The articles, the basis for appellant's claim against this appellee, were on the same page and are clearly related. See App. 79-80. One of the articles begins: "The Agency for National Security Planning (NSP) and the [Military] Security Command Monday ac-counced a crackdown____ The announcement said____" The other article had a headnote beginning: "Following are summaries of activities by key members of the two espionage rings cracked down on by the [Korean government agencies]." See id.

Similarly, the Sae Gae Times published a synopsis of the press release as well as several related articles. The articles’ source is specifically labelled as a “Release by the National Security Planning Agency and the [Military] Security Command of Korea.” App. 252.

. There are four rather than five appellees because the Korea Times is responsible for both its own publication and that of the Hankook libo. See note 7, supra.

. If there were such a remand and, if on remand, it were determined, either by the district court on a motion for summary judgment or by the jury at trial, that the remaining four appel-lees properly attributed the source of their articles, then the privilege would shield these four appellees from liability and would entitle them to judgment. That result would follow because, as the majority opinion states: "To overcome the [official report] privilege, a plaintiff must show malice." Ante at 877. In this case, appellant does not contend that appellees have acted with the common law malice necessary to destroy the privilege under Virginia law. See Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 727 (1985), cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 843 (1985) and Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S.Ct. 3528, 87 L.Ed.2d 653 (1985).