Forensic Art Expert’s
Libel Case Against New Yorker Magazine is Dismissed
New York federal judge dismissed
a libel suit against The New Yorker magazine and one of its writers by Peter
Paul Biro. Biro is a forensic art expert who was the subject of an article
published in July questioning his method of matching fingerprints on paintings
to the artists who created them.
The judge explained in his
decision that as a public figure, Biro failed to show that the article writer,
David Grann, or the magazine had acted “recklessly” or “with actual malice.”
The ruling applied to other
publications that wrote about the article including Business Insider, two
websites and a biography published by Yale University.
The judge previously threw
out parts of the original complaint saying, “There is little question that a
reader may walk away from the article with a negative impression of Biro, but
that impression would be largely the result of statements of fact that Biro
does not allege to be false.” In this decision, the judge dismissed the rest of
the complaint and reviewed the part of the article that reflected negatively on
Biro and his work.
Biro intends to appeal to
the Second Circuit. The judge suggests the application of law in this case was
possibly unfair to Biro but that as a district judge, he was bound by precedent
and says the decision raises many significant and novel issues that seek
further review.
In
this case, New York has jurisdiction because it is the location of The New
Yorker's intended audience. The other
publications that wrote about the article are not republications according to
the single-publication rule.
The
article was written from the author's perspective so the content was a mix
between fact and opinion. The part of the article that would have resulted in
damaging Biro's reputation would have been an opinion and the Ollman Test
should have been applied. Even if it was an opinion, it was based on statements
of fact that would negatively effect Biro's reputation. As the plaintiff, he was responsible for demonstrating
the statement at issue is false. As long as the statement is substantially
true, it cannot meet the standard for falsity and cannot be libelous. Libel by
implication and innuendo can occur through the omission of facts and when read
in a particular way, content carries false implications. Unfortunately, Biro could not say or prove
that those statements were false.
The plaintiff was a public
figure and could not prove actual malice: knowledge of falsity or negligence on
the defendant’s part. As an artist who put his work on display, the plaintiff
is a limited-purpose public figure inviting criticism, so fair comment and
criticism applies.
It
is interesting that the judge thinks that the law may have been unfair to Biro
and that a different decision may occur through the appeal even when Biro could
not prove that the statements at issue were not false.
Image: http://www.newyorker.com/images/2010/07/12/p465/100712_r19806_p465.jpg
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