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Fair Report Privilege Did Not Apply to Private Conversation in Defamation Case

The Tennessee Supreme Court recently affirmed that the fair report privilege does not apply to “a nonpublic, one-on-one conversation between a newspaper reporter and a detective of the county sheriff’s department, who also served as the public information officer for the sheriff’s department.” In Burke v. Sparta Newspapers, Inc., No. M2016-01065-SC-R11-CV (Tenn. Dec. 5, 2019), plaintiff filed a defamation suit against a newspaper that ran an article stating that he had “misappropriated” money from a football league fundraiser. Plaintiff took issue with several statements from the story, which quoted as its source “the case’s lead investigator, Detective Chris Isom, of the White County Sheriff’s Office[.]”

Defendant newspaper filed a motion for summary judgment “asserting immunity from liability based on the fair report privilege.” Defendant argued that “the privilege applied because the article was a fair and accurate report of the statements Detective Isom made to [the reporter] in his official capacity both as lead detective and as public information officer for the White County Sheriff’s Department.” Defendant acknowledged that the statements occurred during a private, one-on-one conversation, but urged that the fair report privilege nevertheless applied.

The trial court agreed with defendant, granting summary judgment, but the Court of Appeals reversed, holding that the fair report privilege did not extend to this situation. The Supreme Court affirmed the judgment of the Court of Appeals.

After reviewing the history of this privilege, the Supreme Court quoted the Restatement (Second) of Torts: “The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.” Because this report was obviously not based on a meeting, this case hung on whether the “nonpublic, one-on-one conversation constituted ‘an official action or proceeding.’”

Noting that Tennessee courts have “declined to expand the fair report privilege to the myriad types of informal reports and official and unofficial investigations, contacts, and communications of law enforcement personnel at all levels of the state and federal bureaucracy…,” the Supreme Court ultimately agreed with the Court of Appeals that the privilege only encompasses “public proceedings or official actions of government that have been made public.” (internal citations omitted). The Court pointed out that applying the privilege to a private conversation such as the one at issue here would cause problems because there would be no record of such conversations, and thus there would be “no objective means of determining the fairness and accuracy of a report derived from a nonpublic, one-on-one conversation.” The Court concluded that the privilege did not apply here, holding that “the fair report privilege applies only to public proceedings or official actions of government that have been made public.” Because the conversation at issue was neither a public proceeding nor an official government action made public, the Court of Appeals decision was affirmed.

Of note, the Court specifically stated that this holding did “not resolve the question of whether a press conference or a press release constitutes a public proceeding or an official action of government that has been made public.”

If you have a defamation case where the fair report privilege may come into play, this case is an important read. It contains a thorough history of both the purpose and the evolution of this privilege, and it comes to a reasonable holding regarding the privilege’s application.

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