German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do. 

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.

Events endeavor to empower student journalists

The Student Press Law Center and partner organizations are sponsoring Student Press Freedom Day on February 23, 2023.

A number of virtual educational events are open to the public:

• Public Records Workshop with the Foundation for Individual Rights in Education (FIRE);
• Roundtable: FIRE Defends The Commonwealth Times, a student newspaper at Virginia Commonwealth University, with FIRE;
• Fighting for Press Freedom: How To Be an Advocate for Student Journalism with the Student Press Law Center (SPLC) and the National Coalition Against Censorship;
• Agency in Student Literary Publications with the National Council of Teachers of English and National Scholastic Press Association;
• Student Press Trivia Night with FIRE, the Freedom Forum, and the SPLC;
• FOIA Workshop with the Electronic Frontier Foundation (EFF);
• Refusing Censorship: A High School Newspaper's Fight for Student Press Freedom, featuring adviser Adriana Chavira of the The Pearl Post at the Daniel Pearl Magnet High School in Los Angeles, with PEN America, the First Amendment Coalition, the National Association of Hispanic Journalists, and the SPLC;
• Student Press Briefing: Impacts of School Surveillance with the Center for Democracy & Technology;

There also are pre-recorded events on school media policies, op-ed writing, and student press freedom.

Many moons ago, I had the privilege of interning at the Student Press Law Center when I was a law student, and then of representing student journalists pro bono when I was in practice in Maryland. Censors never tire, so there is always opportunity for practicing attorneys to engage with this rewarding and challenging work.

HT @ the Free Expression Legal Network (FELN).

Code might inevitably regulate journalism in digital age

The U.K. Information Commissioner's Office is working on a "journalism code of practice" to legislate against defamation and invasion of privacy by mass media.

Principally and ostensibly, the code is intended to bring media law into conformity with U.K. data protection law, essentially the European General Data Protection Regulation (GDPR), including the stories "right to be forgotten," or right to erasure (RTBF). On the ground, the picture is more complicated. The British phone hacking scandal and following Leveson Inquiry constitute a strong causal thread in public receptiveness to media regulation.

Cambridge legal scholar David Erdos analyzed the draft code for the INFORRM public in part one and part two postings in October.  The code incorporates media torts such as defamation of privacy and misuse of private information (MOPI), the latter a common law innovation of British courts to facilitate enforcement of data protection rights. I have posited in other venues that common law tort similarly might provide a way forward to fill gaps in information privacy law in the United States.

Journalism and data protection rights have been on a collision course for a quarter century, like a slow-motion car wreck, and the draft journalism code is a harbinger of the long anticipated impact.  Back in 1995, when the EU GDPR-predecessor Data Protection Directive was brand new, the renowned media law scholar Jane Kirtley published an article in the Iowa Law Review, "The EU Data Protection Directive and the First Amendment: Why a 'Press Exemption' Won't Work."  Kirtley foresaw data protection and the First Amendment's arguably irreconcilable differences before most U.S. scholars had even heard of data protection.

In those innocent days, journalism ethics was reshaping itself to preserve professionalism in the newly realized and anxiety-inducing 24/7 news cycle.  A key plank in the new-ethics platform was its essentiality to resist regulation.  In 2000, media law attorney Bruce Sanford published the book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us.  Then in 2001, everything changed, and mass media and their consumers became engrossed by new concerns over government accountability.

In a way, the consolidation of media regulation in a generation of code could be a relief for journalism, especially on the European continent.  In an age of ever more complex regulatory mechanisms, codification can offer bright lines and safe harbors to guard against legal jeopardy.  Information service providers from local newspapers to transnationals such as Google are struggling to comply with new legal norms such as the RTBF, and there is as yet little evidence of uniformity of norms, much less convergence. Yet even if industry ultimately embraces the security of code, what's good for business is not necessarily good for wide-ranging freedom of expression. 

Courts, too, are struggling with novel problems.  For example, in late November, the European Court of Human Rights ruled in Biancardi v. Italy that RTBF de-indexing orders extend beyond search engines and bind original news publishers.  Writing for Italian Tech and INFORRM, attorney Andrea Monti fairly fretted that the decision effectively compels journalistic organizations to expend resources in constant review of their archives, else face liability in data protection law.  The result, Monti reasoned, will be to discourage preservation, manifesting a threat to the very existence of historical record.

On the one hand, it's foolish to wring one's hands for fear that journalism is being newly subordinated to legal regulation.  Tort itself is a regulatory mechanism, and defamation has been around for a long time, notwithstanding the seeming absolutism of the First Amendment.  On the other hand, media regulation by law looks nothing like the punctilious supervision of regulated industries, including the practice of law.

In my own education, I found the contrast in approaches to ethics perplexing.  In journalism school, my ethics class had been taught aptly by a religion scholar who led impassioned discussions about handout hypotheticals.  In law school, the textbook in legal profession hit the desk with a thud for what was as much a study of model or uniform code as was crim or sales.

With no "First Amendment" per se, media regulation by code is not the novelty in the U.K. that it would be in the United States.  Still, with privacy and digital rights sweeping the globe, law is poised to regulate journalism in new ways everywhere, whether through the subtlety of common law or the coercive power of civil regulation.  American courts will not be able to escape their role in reshaping fundamental rights for the digital world, as European courts are at work doing now.  Kirtley foresaw the issues in 1995, and the chickens are slowly but surely turning up at the roost.

The present ICO consultation closes on January 10, 2022.

Latest installment of Trump family litigation saga includes tortious interference claim against media

A leaked Trump 1040 from 2005

Former President Donald Trump has sued his niece, Mary Trump, and The New York Times Co. in the latest installment of intrafamilial litigation related to Mary's 2020 book, Too Much and Never Enough.

Filed yesterday in Dutchess County, New York, this latest lawsuit (complaint at CNS; Times's own coverage) mainly alleges breach of contract in the earlier settlement of litigation by Mary against Donald over the handling of the estate of Donald's father, Fred, who died in 1999.  I wrote on the course blog for my Trump Litigation Seminar in 2020 about another lawsuit, which is ongoing, by Mary against Donald over the estate of her father, Fred, Jr.; and about a suit by Donald's brother Robert, who died in 2020, which failed to enjoin publication of Mary's book.

The instant complaint alleges that Mary Trump was the source of Trump tax records published by The New York Times in its 2020 exposé.  The bits that interest me are counts of tortious interference with contract and of "aiding and abetting" tortious interference—or the civil equivalent of aiding and abetting, more accurately described as "providing substantial assistance or encouragement"—against the Times.  The complaint alleges that the Times "relentlessly" encouraged Mary to leak the tax records while knowing full well that doing so would breach her confidentiality agreement.

An intentional tort, tortious interference is not confined to business or media, though it's often classified as a "business tort," its usual injury being economic loss.  And it's often included in mass comm law treatments as a "media tort," because it's sometimes deployed against news media.

The paradigmatic case of an interference tort leveled against news media is the threat of Brown & Williamson Tobacco to sue CBS for its 1995 60 Minutes interview with whistleblower-scientist Jeffrey Wigand in violation of Wigand's non-disclosure agreement.  There is a classic scene in the feature film about the matter, The Insider, in which CBS producer Lowell Bergman (Al Pacino) loses his marbles upon admonition by CBS counsel Helen Caperelli (Gina Gershon) that truth is not a defense to interference, rather is an aggravating factor.  "What is this, Alice in Wonderland?" Bergman wonders aloud.  The instant Trump case is compelling for its similarity to the Insider facts.  

Interference as a media tort in the public imagination, or at least the lawyer-public imagination, surfaces periodically.  I wrote about the issue in 2011 when Wikileaks for a while threatened to spill the secrets of big banks.  (That fizzled.)  The high incidence of non-disclosure agreements in settlements of Me Too matters, and the former President's enthusiasm for NDAs combined to fuel another spurtive engagement with the issue in recent years. 

The issue prompts sky-is-falling missives from media because the role of, or any role for, the First Amendment as a defense to tortious interference is fuzzy.  In reality, the problem rarely gets that far.  Without unpacking the nitty gritty, it suffices to say that tortious interference has public policy built into its rigorous heuristic.  It is prohibitively difficult to press the tort against a publisher operating with at least a gloss of public interest.

The Trump complaint tries to circumnavigate that problem by accusing the Times of profit motive in its pursuit and publication of the tax records.  But the history of tort litigation against mass media is littered with failed attempts to drive the stake of profit-making through the heart of the journalistic mission.  Whatever degradations have afflicted mass media in our age of misinformation, no court is going to buy the argument against the Times on that score, at least not on these facts—cf. Palin v. N.Y. Times (N.Y. Times), in which the alleged editorial misconduct is substantially more egregious.

The case is Trump v. Trump, Index No. 2021-53963 (N.Y. Sup. Ct. filed Sept. 21, 2021).