SAXE, J.
This proceeding seeking pre-action disclosure requires us to consider a claim of defamation arising out of an e-mail sent to multiple undisclosed recipients in which the unknown writer contrasts the financial circumstances of the people of Jamaica with that of a corporation that operates multiple resorts in Jamaica, implicitly criticizing the corporation's treatment of native Jamaicans. This appeal from an order denying the petition raises questions regarding the distinction between assertions of fact and expressions of opinion, the social context of the e-mail at issue, and anonymous e-mail communications generally.
Petitioner Sandals Resorts International seeks disclosure of information and materials that would enable it to bring a libel claim against the account holder of the Google Gmail account from which the complained-of e-mail was sent. The writer of the e-mail is identified as John Anthony, at "jft3092gmail.com"; its addressees are Betty Ann Blaine and "UNDISCLOSED RECIPIENTS." Apprehension of the contents of the e-mail is somewhat hampered by spelling and syntax errors, and because
The e-mail's subject line reads: "THERE [sic] SOMETHING GRAVELY WRONG WITH THIS PICTURE OF JAMAICA ERRRR.. . SANDALS? [sic] THE NEED FOR [gap]." The body of the e-mail intersperses comments by the writer with links to various Web sites that presumably contained information that prompted or support the writer's remarks. The gist of the e-mail is that the country of Jamaica gives subsidies to the Sandals resorts, paid for by Jamaican taxpayers, while the foreign corporation that owns the resort company hires only foreigners for its senior managerial positions and hires Jamaican nationals only for menial jobs at its Jamaican resorts.
The first line of the e-mail's body is a link to a photograph published in the Internet edition of the Jamaica Observer at its Web site, www.jamaicaobserver.com. The next line reads, "Sandals sweeps World Travel Awards in London," and is followed by the link to an article by that name, dated November 11, 2009, published at the Jamaica Observer Web site. The e-mail then proceeds with commentary prompted by that article and the images that accompanied it:
The e-mail then quotes from another article (with accompanying images) published at the Jamaica Observer Web site on August 10, 2008, entitled "`Butch' Stewart superstar!," which relates that the founder and chairman of Sandals Resorts
Following the foregoing quoted material from the article is this commentary:
Next in the text of the e-mail is a link to a Web site containing an image, apparently depicting Kevin Froemming, the president of Unique Vacations, Inc., which company is part of the Sandals corporate network:
Directly below the foregoing is a link to an image located at the sandals.com Web site, which is followed by: "MAKING BEDS-MASSAGES JAMAICAN JOBS!," and a similar link to another image at the Sandals Web site. That is followed by:
Next is the remark, "LOOK AT THIS GREAT JOB THAT WENT TO A FOREIGNER," followed by a link to an article published at www.prweb.com, entitled, "Sandals Resorts Appoints 16-Year Veteran, Dinah Marzullo, As Senior Director of Advertising," which reads, "Miami FLA [link] June 2, 2008— Sandals Resorts today announced the appointment of Dinah Marzullo as senior director of advertizing. Marzullo, who most recently served as advertising director at Carnival Cruise Lines, will be based out of Unique Vacations Inc. (UVI)" followed by these comments: "I AM GUESSTIMATING THAT THE SALARY FOR THIS JOB IS OVER USD$150,000 ANNUALLY. NO JAMAICAN NEED APPLY?" The next comment, "LARGE NUMBER OF JOBS! JAMAICANS EXCLUDED?," is followed by a www.sandals.com/employment link.
Finally, the remarks "ALL THE TALK ABOUT WORK PERMITS IS A RED HERRING. WHAT DO IMMIGRATION LAWYERS DO?" and "HOW MANY JAMAICANS ARE MANAGING THESE PROPERTIES? IS ANY JAMAICAN BOLD ENOUGH TO ASK BUTCH THIS?" are followed by links to sandals.com images of the various Sandals resorts in Jamaica.
Sandals contends that this e-mail is false and defamatory in asserting essentially that Sandals is racist and discriminatory in hiring non-Jamaicans for all positions of management and authority, and giving native Jamaicans only low-paying menial jobs. It therefore seeks
Pursuant to a stipulation between the parties, Google notified the account holder and provided him with a copy of the order to show cause and petition; the account holder contacted the motion court, acknowledging receipt of the documents and asserting that the publication was not defamatory.
The court denied the petition, finding that the e-mail is nonactionable opinion, because it "does not contain assertions of fact, nor would a reasonable person construe that it does." (27 Misc.3d 1207[A], 2010 NY Slip Op 50606[U], *3.) The court continued: "For the most part, the account holder enumerates queries in response to articles and pictures. The account holder provides links to the text on which his/her assertions are based." (Id.) These links, according to the court, provide the reader with the facts and allow the reader to arrive at his or her own conclusions, indicating to the reader "that the account holder's words are meant to provoke either thought or discussion and are therefore protected speech." (Id.) The court also found that the resort company "offer[ed] no evidence of the harm the account holder's [e-mail] has caused it" (id.) and therefore could not satisfy the "injury" element of a libel cause of action.
For the reasons that follow, we affirm.
Pre-action discovery is available under CPLR 3102 (c) only "where a petitioner demonstrates that [it] has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong" (see Bishop v Stevenson Commons Assoc., L.P., 74 A.D.3d 640, 641 [2010], lv denied 16 N.Y.3d 702 [2011]). The petition fails to demonstrate that Sandals has a meritorious cause of action.
Defamation is defined as the making of a false statement of fact which "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace" (Rinaldi v Holt, Rinehart & Winston, 42 N.Y.2d 369, 379 [1977], cert denied 434 U.S. 969 [1977] [citations omitted]). "Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, . . . a libel action cannot be maintained unless it is premised on published assertions of fact," rather than on assertions of opinion (Brian v Richardson, 87 N.Y.2d 46, 51 [1995]).
Nor did Supreme Court err in reasoning that the failure to allege the nature of the injuries caused by the statement was fatal to the petition. While a pleading of special damages is not necessary in a case of defamation per se, there must be something that addresses the element of injury to reputation (see Ferguson v Sherman Sq. Realty Corp., 30 A.D.3d 288, 289 [2006]). Sandals argues that portraying a plaintiff as racist constitutes libel per se, citing Herlihy v Metropolitan Museum of Art (214 A.D.2d 250 [1995]). However, where the plaintiff is a corporation, a cause of action for libel per se requires the plaintiff to establish that the publication injured its business reputation or its credit standing (see Warehouse Willy v Newsday, 10 A.D.2d 49, 51 [1960]). Thus, even accepting that the e-mail portrays petitioner as a company whose hiring decisions are informed by the applicants' race—a portrayal that certainly would be defamatory—there still must be some allegation tending to establish that its business reputation was harmed. Petitioner made no such allegation in its petition.
Even were we to find that the petition sufficiently alleged that the subject e-mail injured Sandals' business reputation or damaged its credit standing, we still would deny the application for disclosure of the account holder's identification on the ground that the subject e-mail is constitutionally protected opinion.
"Distinguishing between assertions of fact and nonactionable expressions of opinion has often proved a difficult task" (Brian v Richardson, 87 NY2d at 51). The approach now used in this state for determining which statements are protected opinion and which are unprotected factual assertions is based on a four-part formula enunciated in Ollman v Evans (750 F.2d 970 [DC Cir 1984], cert denied 471 U.S. 1127 [1985]; see Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 243 [1991], cert denied 500 U.S. 954 [1991]). The four factors of the Ollman formula are: (1) whether the statement at issue has a precise meaning so as to give rise to clear factual implications (id. at 980), (2) the degree to which the statements are verifiable, i.e., "objectively capable of proof or disproof" (id. at 981), (3) whether the full context of the communication in which the statement appears signals to the reader its nature as opinion (id. at 982), and (4) whether
The United States Supreme Court substantially altered the last two "context" considerations of this formula in Milkovich v Lorain Journal Co. (497 U.S. 1 [1990]), which decision "put[] an end to the perception—as it turns out, misperception—traceable to dictum in Gertz v Robert Welch, Inc. (418 U.S. 323, 339-340) that . . . there is a `wholesale defamation exemption for anything that might be labeled "opinion"'" (Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 242 [1991], quoting Milkovich at 18). Concerned about difficulties it believed would be likely to arise from application of the newly eased standards of the Milkovich decision, the Court of Appeals in Immuno AG. v Moor-Jankowski announced that the New York State Constitution provides broader speech protections than does the United States Constitution under Milkovich. It announced that "the standard articulated and applied in Steinhilber furnishes the operative standard in this State for separating actionable fact from protected opinion" (Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 252 [1991], citing Steinhilber v Alphonse, 68 N.Y.2d 283 [1986]).
Accordingly, the standard in this state for distinguishing protected expressions of opinion from actionable assertions of fact, as articulated in Steinhilber, is as follows:
Sandals views the e-mail complained of here as containing actionable false statements of fact, or an actionable statement of mixed fact and opinion, in which the anonymous writer created
However, Herlihy is inapposite to Sandals' claim. Although implying that someone is racist is as libelous as representing someone as anti-Semitic, here we are not dealing with a few oral statements that each stand on their own, but with a multi-page writing. Consequently, our inquiry must address both the words and the context of the e-mail as a whole, as well as its broader social context, to determine whether the content of the e-mail constitutes defamation.
There is validity to Sandals' argument that the "natural connotation" of the e-mail is that Sandals' hiring policies are racist. Although most of the comments in the e-mail refer to "Jamaicans" and "foreigners" without reference to race or skin color, there is one specific assertion that Sandals "DOES NOT EVEN HAVE A SINGLE DARK-SKINNED JAMAICAN ON ITS BOARD," from which it is reasonable to infer that the writer is suggesting that Sandals is biased in its treatment of Jamaicans of color. It is also true, as Sandals states, that assertions of objective fact seem to be contained in the comments that Jamaicans are relegated to menial, low-paying jobs such as making beds, cleaning toilets, and giving massages, while foreigners hold "HIGH PROFILE LUXURY-STYLE JOBS," and that the government is subsidizing tourist empires with the taxes of poverty-stricken Jamaicans.
However, none of these factual assertions establishes a meritorious defamation claim.
The question of whether a defamation claim may be maintained does not turn on whether the writing contains assertions that may be understood to state facts. "[E]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience
In Brian v Richardson, the Court considered an article by former United States Attorney General Elliot Richardson called A High-Tech Watergate that was published on the Op-Ed page of the New York Times on October 21, 1991 (87 NY2d at 48). Although the article contained assertions that the plaintiff, Dr. Earl W. Brian, was "linked to a scheme to take [Richardson's client] Inslaw's stolen software and use it to gain the inside track on a $250 million contract to automate Justice Department litigation divisions" (id. at 48-49 [internal quotation marks omitted]), the Court concluded that Brian's defamation claim against Richardson was properly dismissed. It explained that since "the purpose of defendant's article was to advocate an independent governmental investigation into the purported misuse of the software that Inslaw had sold to the Justice Department[,] . . . a reasonable reader would understand the statements defendant made about plaintiff as mere allegations to be investigated rather than as facts" (id. at 53).
Considering the e-mail in question here as a whole, we find that it is an exercise in rhetoric, seeking to raise questions in the mind of the reader regarding the role of Jamaican nationals in the Sandals resorts located in Jamaica. It is replete with rhetorical questions, asked either in relation to a link to an article about Sandals' companies or executives or in relation to a link to a photograph from the resorts' on-line public relations materials. Its apparent purpose is not to characterize Sandals Resorts as racist. It is to call to the reader's attention the writer's belief that the native people of Jamaica, specifically the
The tone of the e-mail, as well, indicates that the writer is expressing his or her personal views, in that it reflects a degree of anger and resentment at the idea that travel agents make money from the success of Sandals, and foreign nationals earn large salaries from the resorts, while native Jamaicans benefit financially only by being hired for service jobs at the resorts.
To the extent the e-mail suggests that Sandals' hiring of native Jamaicans is limited to menial and low-paying jobs, a reasonable reader would understand that as an allegation to be investigated, rather than as a fact (see Brian v Richardson, 87 NY2d at 53).
Nor does the e-mail imply that it is based upon undisclosed facts; on the contrary, each remark is prompted by or responsive to a hyperlink, that is, it is "accompanied by a recitation of the facts upon which it is based," and therefore qualifies as "pure opinion" under the Steinhilber analysis (68 NY2d at 289).
Finally, consideration of the "broader social context into which the statement fits" (Ollman, 750 F2d at 983) also requires the conclusion that the e-mail must be treated as an expression of the writer's views and opinions, which he is asking the reader to consider.
The culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a "freewheeling, anything-goes writing style" (see Cheverud, Comment, Cohen v. Google, Inc., 55 NY L Sch L Rev 333, 335 [2010/2011]).
The observation that readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts specifically addresses posted remarks on message boards and in chat rooms. However, it is equally valid for anonymous weblogs, known as blogs, and it applies as well to the type of widely distributed e-mail commentary under consideration here.
Indeed, the e-mail at issue here, which questions not so much Sandals' conduct with regard to race as its use of Jamaican wealth and the Jamaican labor pool, bears some similarity to the type of handbills and pamphlets whose anonymity is protected when their publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences such as economic or official retaliation (see generally Martin, Comment and Casenote, Freezing the Net: Rejecting a One-Size-Fits-All Standard for Unmasking Anonymous Internet Speakers in Defamation Lawsuits, 75 U Cin L Rev 1217, 1219 [Spring 2007]; Levine, Note, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 Colum L Rev 1526, 1531 [1996]). Indeed, the anonymity of the e-mail makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact.
In sum, while isolated portions of the subject e-mail are arguably factual, those portions constitute facts supporting the writer's opinion, which renders the writing as a whole "pure opinion" since it does not imply that it is based upon undisclosed facts (see Steinhilber, 68 NY2d at 289-290). Far from suggesting that the writer knows certain facts that his or her audience does not know, the e-mail is supported by links to the writer's sources. Moreover, the "content of the whole communication, its tone and apparent purpose" (Immuno AG., 77 NY2d at 254), and its very anonymity, would signal to any reasonable reader that the writer's purpose is to foment questioning by native Jamaicans regarding the role of Sandals' resorts in their national economy. Thus, the communication is not actionable.
Accordingly, the judgment of the Supreme Court, New York County (Alice Schlesinger, J.), entered April 16, 2010, dismissing the petition for pre-action discovery in an action for libel, should be affirmed, without costs. The appeal from the order, same court and Justice, entered April 30, 2010, which denied petitioner's ex parte application for reargument (incorrectly denominated an application for renewal and reargument), should be dismissed, without costs, as taken from a nonappealable order.
Judgment, Supreme Court, New York County, entered April 16, 2010, affirmed, without costs. Appeal from order, same court, entered April 30, 2010, dismissed, without costs, as taken from a nonappealable order.
