The Volokh Conspiracy
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Yesterday, I blogged about the lawsuit by Marc Rotenberg, former head of the Electronic Privacy Information Center, against Politico and Protocol, over a story that discussed Rotenberg's positive COVID test result, and Rotenberg's not immediately informing his staff about the test. In that post, I focused on Rotenberg's disclosure of private facts claim, which raises an interesting and important legal issue: when is disclosure of a person's medical potentially tortious (and in particular when can defendants avoid liability on the grounds that the disclosure was newsworthy)?
Here, I'd like to focus on Rotenberg's libel claim. My sense is that it raises fewer novel legal issues, but is still an interesting illustration of recurring controversies in libel litigation.
The Complaint is quite long, and much of it isn't about Politico's and Protocol's statements at all. Instead, much discusses the alleged failings of Politico, Protocol, and their managers more generally (e.g., firings of staffers by Protocol, on the theory that "To further distract attention from the meltdown underway at The Protocol, Defendants manufactured even more egregious statements about the Plaintiff"). Much of the rest discusses EPIC's successes under Rotenberg's leadership.
But here is my sense of the key alleged defamation. The numbered paragraphs are quotes from the Complaint (which you can refer to for more details, such as illustrations and footnotes); the bolded headings are my summary of the allegedly libelous statement; and in each section I offer my opinion on the tentative legal analysis:
"Accusing a former staff member of leaking the story"
[91.] The Protocol article is replete with false, misleading, and defamatory statements.
[92.] When Issie Lapowsky contacted Marc Rotenberg prior to publication of the article with a detailed list of bullet points, Marc knew immediately the source of the allegations.
[93.] Marc, who knew Issie from prior unrelated reporting on privacy issues, responded by email "Hi, Issie, Is this really what Mary wants to do? Regards, Marc." When Issie pressed further for a response, Marc replied "Hi, Issie, I think I said what needed to be said. Regards, Marc."
[94.] Lapowsky falsely reported in the April 16 article, "Asked to comment, Rotenberg responded by accusing a former staff member of leaking the story to Protocol."
[95.] That sentence, like virtually every other sentence in the article, was not true.
My tentative reaction: the "accusing a former staff member of leaking the story" strikes me as an accurate characterization of the "Is this really what Mary wants to do?" quote. ("Mary" refers to former staff member Mary Stone Ross.) It thus, in my view, isn't libelous
[96.] The Protocol article contained more than a dozen statements that were untrue, false, misleading, malicious, and defamatory or contorted true facts so that a negative inference could be drawn (the "false light" tort.)
[97.] The Protocol article falsely stated, for example, that Ross had "resigned." Ross had been fired.
[98.] The Protocol article also falsely stated that "several employees resign[ed]."
[99.] Apart from Ross's termination, there was only one other person who left EPIC during this time, and it was long planned, and with Marc's full support as both were unable to resolve an issue with another staff member at EPIC.
[100.] Nobody at EPIC resigned because of Marc's conduct during this period, contrary to the article's implication to the contrary.
The claims of staff resignations are factual allegations. But even so I'm skeptical that—even if they are false—they are defamatory, in the sense of tending to expose Rotenberg to contempt, derision, or ridicule. Under D.C. law, as under American libel law generally, "an allegedly defamatory remark must be more than unpleasant or offensive; the language must make the plaintiff appear 'odious, infamous, or ridiculous.'" I doubt that even false claims of multiple resignations by staffers would qualify, but I'm not positive about this.
What Rotenberg's memo to staff said
[101.] The Protocol article falsely stated that Marc "acknowledged in a memo to his staff and his board that he should have quarantined and alerted his staff that he was taking a coronavirus test on March 9 …"
[102.] That statement is also not true. Marc's memo to staff, which expresses concern for possible lack of empathy in the early days of the pandemic, (1) does not say Marc should have quarantined or that he violated any medical or public health direction to quarantine; or (2) that Marc should have alerted staff that he was taking a test for coronavirus.
[103.] Both statements are fabrications and contrary to fact, medical advice, and the content of the memo then in the physical possession of both the reporter Issie Lapowsky and the Executive Editor Tim Grieve. They are beyond malicious and defamatory.
This too may involve a factual falsehood (if the memo, which I haven't seen, was mischaracterized); as with the staff-firings claim, I'm not sure that this claim of Rotenberg's acknowledgment of error tends to make Rotenberg "appear 'odious, infamous, or ridiculous,'" but again it's possible.
"Worked alongside them for two days" after the test (though before the result)
[104.] The Protocol also stated that Marc "worked alongside them for two days." Almost every word in that sentence is false—and in this context—malicious. Marc had no physical contact with any staff members. EPIC is located in a five-story townhouse; every staff member, including Marc, has their own office. The use of "alongside" maliciously conveyed the image that Marc worked in close physical proximity to other members of the EPIC staff.
This strikes me as a matter of characterization and opinion, and thus not actionable. "Worked alongside them" doesn't, I think, mean constant close physical proximity (especially when you're talking about an organization's president, who most people would assume has his own office). Rather, the claim seems to me that he was in the same building and thus likely to be passing closely by employees on various occasions (coming to and from work or to and from lunch, meeting with people, and so on). Whether this was dangerous or improper is a separate matter, and one of opinion.
"Put their safety at risk, but also undermined the organization's resistance to … surveillance"
[105.] The Protocol further "reported" that some EPIC employees say that Marc "put their safety at risk, but also undermined their organization's resistance to invasive coronavirus surveillance."
[106.] As to Marc putting others at risk, that statement is twice false. First, as EPIC Chair Anita Allen would later state, at all times Marc followed the medical advice he received. Second, as the leader of a privacy organization, he had a professional obligation to uphold privacy practices for contract tracing. It is absurd—and in this context malicious—to suggest that a privacy organization undermines its mission when it attempts to comply with well-established practices for the protection of sensitive medical information.
[107.] The statement also falsely and maliciously suggested that, as a manager, Marc acted irresponsibility and without regard to the interests of EPIC.
[108.] In fact, Marc was in the office to ensure bills were paid (including staff salaries) and key management materials for the organization were updated.
[109.] The Protocol article maliciously attacked Marc for doing his job as Executive Director of EPIC, then one of the nation's leading privacy organizations.
This strikes me as even more clearly a matter of opinion (even accepting that The Protocol could be liable for reprinting the EPIC employees' allegations). "Put their safety at risk" clearly means "undue risk," and that is a question on which different people would naturally have different views (regardless of whether he was "follow[ing] the medical advice he received"). As to what would or wouldn't undermine a privacy organization's resistance to invasive coronavirus surveillance, that is a classic question of opinion.
"Out there saying privacy trumps surveillance"
[110.] On information and belief, Ross is anonymously quoted in the article: "'He's out there saying privacy trumps surveillance,' said one former employee [Ross] who worked there at the time. 'Every time he opens his mouth, what runs through my head is: We need more surveillance.'"
[111.] Again, one sentence contains two false, defamatory and malicious statements. First, Marc never said "privacy trumps surveillance." Marc's entire life work—reflected in testimony for the US Congress, amicus briefs for federal courts, academic articles, and public speeches—has focused on non-zero-sum outcomes for privacy.
[112.] Marc had also served as an expert for several panels of the National Academies of Sciences with the explicit goal of developing privacy-protecting measures for the federal government….
[113.] Simply stated, Marc would always look for approaches to achieve the stated goal and protect privacy.
[114.] And that is also almost precisely the view expressed about the pandemic and privacy by now President Joe Biden in April 2020, the week before The Protocol article appeared. As then-candidate Biden wrote, "there needs to be widespread, easily available and prompt testing—and a contact tracing strategy that protects privacy."
[115.] Marc Rotenberg, on behalf of EPIC, literally cited the President's comment above in a detailed statement to the House Committee on Energy and Commerce on April 15, 2020 regarding the protection of medical privacy amidst efforts to combat the spread of the novel coronavirus.
[116.] Marc wrote, "Former vice president Joe Biden has correctly said 'there needs to be widespread, easily available and prompt testing—and a contact tracing strategy that protects privacy.'"
[117.] Marc also cited the remarks of Dr. Michael Ryan of the World Health Organization, a leading spokesperson for the organization battling the pandemic, who repeatedly emphasized the need to protect privacy.
[118.] Marc wrote: "It is essential that government agencies and private companies implement standards that safeguard privacy. As Dr. Michael Ryan of the World Health Organization has stated, there is a "tremendous amount" of innovation and enthusiasm for new products. But he also cautioned that "when collecting information on citizens or tracking their movements there are always serious data protection and human rights principles involved." Dr. Ryan said, "we want to ensure that all products are done in the most sensitive way possible and that we never step beyond the principles of individual freedoms and rights."
[119.] In the statement for Congress, also signed also by EPIC Policy Counsel Caitriona Fitzgerald and EPIC Senior Counsel Alan Butler, Marc wrote, "This moment provides a unique opportunity to show that privacy and public health are complimentary goals and to establish that Privacy Enhancing Techniques can be deployed to serve the public interest and protect individuals."
[120.] This is precisely the point that The Protocol maliciously sought to obscure: the fact that public safety and privacy protection are complimentary goals, a view expressed by leading medical organizations, including the CDC and the WHO, and the current President of the United States.
[121.] The Protocol statement above also wrongly suggests that Marc could fulfill his responsibility as director of one of the nation's leading privacy organizations by simply supporting unchecked surveillance. That is also an absurd—and this context malicious— statement.
Again, a three-word summary of a privacy advocate's statements as "privacy trumps surveillance" is clearly an opinion, as is any suggestion about how Rotenberg could best "fulfill his responsibility as director of one of the nation's leading privacy organizations."
"Did not mention that his COVID-19 test had come back positive"
[122.] The Protocol further "reported" that in an email to staff Marc, "did not mention that his COVID-19 test had come back positive that very morning."
[123.] That statement presumes an action—namely, revealing the identity of individuals who had tested positive for coronavirus—that is directly contrary to widely established practices for public safety.
[124.] For The Protocol to publish this statement, Grieve would have had to recklessly ignore all of the relevant scientific and medical information concerning the disclosure of the identity of a patient's medical diagnosis.
[125.] This scientific and medical information was, and is, readily available on the Internet.
The Complaint seems to acknowledge here that The Protocol's statement is true, not to assert that it's false.
"At that time, [99.5 F] was still below what the [CDC] considered to be a symptom"
[126.] The Protocol's flair for defamation posing as objective reporting is almost unparalleled in modern journalism. Lapowsky writes, "Marc told them he'd returned from Milan on Feb. 22, and registered a temperature of 99.5 on March 1. At the time, that was still below what the Centers for Disease Control considered to be a symptom," as if to suggest that there was a subsequent determination by the CDC that a temperature of 99.5 was later considered to be a symptom.
[127.] But the CDC standard remains at 38 degrees centigrade today (100.4 Fahrenheit) as it was in March 2020.
[128.] So widely established is this medical fact that the DC government currently displays placards with the number 100.4 to help people readily identify the actual symptoms of COVID.
[129.] Marc followed all medical advice he received. DC health authorities told him to gather telephone numbers for contact tracing purposes, which he promptly did.
[130.] He was not told by DC health authorities to contact staff members directly.
[131.] As the CDC emphasizes "Contact tracing is a key strategy to prevent the further spread of COVID-19."
[132.] And the CDC emphasizes the need to protect the infected patient's identity.
[133.] EPIC Board Chair Anita Allen also stated that Marc complied with all medical instructions he received.
[134.] The Protocol report that Marc had a temperature of 99.5 also presents a true fact in a false light (implying that this temperature imposed on Marc requirements that he breached), is injurious to Marc, tortious, and actionable as an invasion of privacy.
[135.] The Protocol's purposeful contortion of that number to generate a "scoop" also undermined public health efforts, pursued by the CDC, DC Health, and other agencies.
"Was still below" could indeed be reasonably interpreted, I think, as saying that now 99.5 is above what the CDC considered to be a symptom. (See Memphis Pub. Co. v. Nichols (Tenn. 1978) for a colorful example of such implications.) But even if that's false, I don't think it's defamatory of Rotenberg. The article isn't accusing Rotenberg of improperly failing to get a test on Mar. 1 when his temperature was 99.5; indeed, it's expressly acknowledging that 99.5 wasn't seen as a symptom by the CDC when all this was happening, so there was nothing unreasonable in Rotenberg's not getting tested then. And indeed the article says Rotenberg did get a test on Mar. 5. Whatever Rotenberg is alleged to have done wrong, it wasn't in failing to get a test until Mar. 5.
"Falsely and maliciously suggests that Marc acted contrary to medical advice"
[136.] The Protocol article further stated he "later told the staff he was already on a plane about to depart for Miami for the weekend. So he scheduled a test for when he returned to D.C. on Monday, March 9."
[137.] The article falsely and maliciously suggests that Marc acted contrary to medical advice. Marc took the test on Monday, following the advice of his doctor, who stated that there was no urgency. On March 6, he was already at the end of the period that created any risk of exposure, following his return from work travel to Northern Italy on February 22.
I just don't see how the statement about the Miami trip—the literal accuracy of which the Complaint doesn't deny—would imply to a reasonable reader that he was acting contrary to medical advice. There is an implication that he was acting less carefully than the author or others think he might have, but that is a question of opinion.
"I exposed my team to a pandemic, and you might not have a job"
[138.] The Protocol also "reported" that Marc said "I exposed my team to a pandemic, and you might not have a job" in the same meeting.
[139.] Again, with an economy of words, The Protocol manages to stuff three false and defamatory statements into one sentence. First, Marc in no way uttered the quote that was attributed to him by The Protocol in the preceding paragraph. Second, Marc did not expose his team to the pandemic. And third, Marc's discussion of EPIC's finances was (1) intended to keep the staff in the loop about the state of the organization, which is a good management practice, and (2) assure staff that there was funding for at least six months, even though there had been a significant downturn in the market and that the annual fundraising dinner would likely be cancelled.
[140.] The Protocol falsely reported the opposite point that Marc had made with an unambiguously malicious intent.
The article, though, stated:
"It was, 'I exposed my team to a pandemic, and you might not have a job' in the same meeting," the former employee said. "Pretty rough."
In context, it seems to me, (1) a reasonable reader would likely not view this as a claim that Rotenberg said those words; rather, it comes across as the former employee's characterization of the gist of what Rotenberg had said. (2) Whether Rotenberg exposed his team to the pandemic is a question of opinion. And (3) whatever the intentions of Rotenberg's financial explanation, it does sound to me, from the Complaint, like there was indeed some risk to people's jobs.
"That rationale [anonymity] is pretty strained when it's the executive director"
[141.] The Protocol also falsely and maliciously reported that "The idea [of anonymity] is for workplace retaliation. I think that rationale is pretty strained when it's the executive director," said one of the former employees.
[142.] Again, on information and belief, Ross, the fired employee, made the foregoing statement to Lapowsky.
[143.] It is precisely the obligation of the head of a privacy organization to uphold well- established privacy practices, such as contact-tracing with privacy. To write otherwise is absurd—and in this context—malicious.
Assuming the former employee's statement is accurately reported (and the Complaint doesn't seem to deny that), it's a clear statement of opinion.
"When he's violating the guidelines"
[144.] The Protocol, again following Ross's (on information and belief, the "former employee" being quoted) instructions, falsely reports, "It rubs us all the wrong way when we see him quoted in the press talking about contact-tracing privacy issues when he's violating the guidelines."
[145.] There is no indication that Marc violated any guidelines at any time. The statement is clearly false and defamatory, and in this context—from a fired employee, seeking revenge, "vindictive" as described at the time—is prima facie evidence of malicious intent.
This might be libelous, on the theory that The Protocol is liable for repeating the former employee's statements, if it's false and if The Protocol's reporter knew or was reckless about its falsity (if Rotenberg is viewed as a public figure) or was negligent about its falsity (if Rotenberg is viewed as a private figure).
"Went to work … after his doctor told him to take a COVID-19 test"
[192.] Tim Grieve, the Executive Editor of The Protocol, did not simply approve publication of the defamatory, false, and malicious article about Marc Rotenberg. On April 16, 2020, the same day that he approved publication of the article, he also personally tweeted from his Twitter account (@timgrieve) the story, the image, and the link.
[193.] Grieve added the defamatory, false and malicious statement, "A chief critic of tech's coronavirus tracking went to work and held meetings with employees after his doctor told him to take a COVID-19 test. It came back positive."
[194.] On April 21, 2020, the very same day that Executive Editor Tim Grieve was firing nearly half of his reporters, including many of his senior staff, he caused to be published another series of false and defamatory statements about Marc Rotenberg.
[195.] The Protocol falsely and maliciously stated that "Marc Rotenberg came to work and held meetings after his doctor directed him to take a test that later came back positive," falsely and maliciously implying that he acted contrary to medical advice.
The statement that he went to work after he took the test appears to be true (or at least the Complaint doesn't deny its truth). And I don't see how the statement can be read as implying that "he acted contrary to medical advice." "In entertaining claims of defamation by implication, courts must be vigilant not to allow an implied defamatory meaning to be manufactured from words not reasonably capable of sustaining such meaning."
"Outspoken critic of invasive surveillance efforts"
[196.] The Protocol also falsely and maliciously stated that Rotenberg has recently been an "outspoken critic of invasive surveillance efforts to address the spread of COVID-19," falsely and maliciously implying that he was opposed to effective means of tracking COVID.
[197.] In fact, in the article cited by The Protocol, Marc made clear the need ensure effective testing.
[198.] The Protocol also falsely and maliciously stated that he did not notify employees of the test results, falsely and maliciously implying that health protocols required this or that Marc was directed to do so by doctors or public health authorities.
Pretty clearly a matter of opinion.
"A consequence of his actions during the week of March 12"
[199.] The Protocol maliciously and falsely implied that Marc's departure from EPIC was a consequence of his actions during the week of March 12, 2020.
[200.] In fact, the proximate cause of Marc's departure was the publication by Tim Grieve of the Protocol article on April 16, 2020.
I'm not sure how the implication is alleged to be false—indeed, Rotenberg's departure from EPIC, according to the Complaint itself, was a consequence of Rotenberg's actions the week of March 12, even if ultimately Protocol's publicizing those actions precipitated the departure.
[290.] "In a defamation by implication case under D.C. law, 'the courts are charged with the responsibility of determining whether a challenged statement is capable of conveying a defamatory meaning.'"
[291.] As the D.C. Circuit has recently explained, "A plaintiff must show first that the 'communication, viewed in its entire context, … conveys materially true facts from which a defamatory inference can reasonably be drawn,'" and second, that "'the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference.'"
[297.] The Protocol articles falsely and maliciously stated that Marc "acknowledged in a memo to his staff and his board that he should have quarantined and alerted his staff that he was taking a coronavirus test."
[298.] The Protocol articles falsely and maliciously suggested that Marc's action "undermined their organization's resistance to invasive coronavirus surveillance."
[299.] The Protocol articles falsely and maliciously suggested that Marc ignored medical advice.
[300.] The Protocol articles falsely and maliciously suggested that it is contrary to the purpose of a privacy organization to safeguard privacy.
[301.] The Protocol articles falsely and maliciously suggested that multiple employees had resigned relating to the events falsely described in the article when, in fact, the single employee who resigned during the relevant timeframe did so for unrelated reasons.
[313.] The April 21, 2020 POLITICO article falsely and maliciously stated that Marc "later acknowledged to staff in a memo that he should have notified them of the test instead of continuing to work, according to the report."
[314.] The republication of a defamatory statement is itself defamatory…..
[315.] The POLITICO article also made the false, defamatory and malicious statement that "Marc Rotenberg has been a leading critic of Silicon Valley's efforts to track the spread of Covid-19."
So my tentative thinking: The libel claims strike me as mostly pretty weak. Many are about statements of opinion; others are based on theoretical implications that the court is unlikely to find. Some are indeed based on factual statements, and might be enough to let the case go forward (assuming there is evidence the statements were false and made with the relevant mental state), though even some of those are likely not to be seen as sufficiently tending to damage Rotenberg's reputation.
There is also a false light claim; the false light tort allows for liability for false statements that aren't damaging to reputation but are nonetheless highly offensive. (A classic example, from an illustration to the Restatement of Torts, would be knowingly mischaracterizing a person's political party affiliation.)
But I doubt that the statements that I discussed as factual and possibly false but nondefamatory would mean the threshold of "the false light in which the other was placed would be highly offensive to a reasonable person." Perhaps some might be; for instance, perhaps saying that Rotenberg "acknowledged in a memo to his staff and his board that he should have quarantined and alerted his staff that he was taking a coronavirus test on March 9," if that characterization is false, might be seen as highly offensive much as mislabeling a person's political party affiliation might be. But even that, I think, would be an uphill battle.
In any event, though, that's just my tentative opinion; I'd love to hear what you folks think.