"She Confessed That Her Husband Killed Alexander and Herself Died a Month Later at the Age of 28. That's Strange": Libel by Implication?

From Judge John Cronan's decision Tuesday in Goldfarb v. Channel One Russia(S.D.N.Y.):

Plaintiff Alex Goldfarb claims that Defendant Channel One Russia … libeled him and intentionally inflicted emotional distress upon him through statements made during four television programs it broadcast in 2018. Those statements, Goldfarb claims, either asserted or implied six claims about him that constitute libel per se: that he murdered Alexander Litvinenko …, a Russian dissident who was killed in London in 2016; that he murdered his own wife; that he is a CIA operative; that he persuaded Marina Litvinenko …, Litvinenko's widow, to give false testimony to a parliamentary inquiry that was carried out in the U.K. into Litvinenko's death (the "Owen Inquiry"); that he and Litvinenko together operated an illegal business helping criminal asylum-seekers; and that he conspired with Boris Berezovsky, an exiled Russian oligarch, to defraud the U.K. into granting asylum to Berezovsky….

Now before the Court is Channel One's motion for summary judgment on all causes of action in Goldfarb's Complaint and on all of its counterclaims…. For reasons that follow, Channel One's motion for summary judgment is granted in part and denied in part. Because an accusation of membership in the CIA is not defamatory on its face, and because Goldfarb has not alleged any extrinsic facts that would make that accusation defamatory, his claim that Channel One libeled him as a CIA member is dismissed. Channel One's motion is denied in all other respects.

A reasonable person could understand certain statements that were made on Channel One's broadcasts to imply that Goldfarb killed his wife, and a false accusation that Goldfarb influenced Litvinenko's wife to lie to the Owen Inquiry constitutes libel per se. Further, when considered in context, the statements Channel One broadcast were statements of fact rather than of opinion. And because the evidence disclosed in the record raises a genuine issue of fact as to whether Channel One acted with actual malice, the question of actual malice must be resolved at trial….

I focus in this post on the question "whether Channel One's broadcasts accused Goldfarb of killing his wife":

The transcripts of the relevant programs contain no express allegation that Goldfarb killed her; instead, his theory is that the accusation was implied by the discussion of Walter's purported conversation with her and her subsequent death. First, the following exchange took place during the March 20, 2018 episode of Let Them Talk:

[Borisov:] Good evening to everyone again…. So Walter Alexandrovich said he considers CIA complicit in the murder of Alexander Litvinenko and you even said you know who specifically did it?

[Walter:] Yes Goldfarb. It was his work

[Borisov:] And you know that it was Alexander Goldfarb, an associate of Boris Berezovsky from what you've heard from Alexander's own wife.

[Walter:] Yes the wife. She told me about that. And a month later she herself died suddenly …

[Unidentified Guest:] She died suddenly.

[Unidentified Guest:] Was she a young woman?

[Walter:] 28 years old. She was very young.

Second, Walter participated in a similar exchange during the March 30, 2018 episode of Man and Law:

[Walter:] There was a woman weeping, Goldfarb's wife. She was about your age, very pretty. She was sitting there crying, weeping: "Walter, Walter, Alex killed Alexander."

[Reporter:] That was Goldfarb's wife?

[Walter:] Goldfarb's wife. She died within a month.

[Narrator:] She confessed that her husband killed Alexander and herself died a month later at the age of 28. That's strange.

Thus, the question is whether the accusation that Goldfarb killed his wife was expressed during these exchanges.

Under New York law, "it is for the court to decide whether the words are susceptible of the meaning ascribed to them." In particular, the court must decide whether "there is a reasonable basis for drawing the defamatory conclusion" from those words. Id. Nonetheless, while the question of whether the words could express the alleged defamatory meaning must "be resolved by the court in the first instance," the actual meaning of those words must ultimately be determined at trial: "If the contested statements are reasonably susceptible of a defamatory connotation, then it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader." In evaluating the published words, the court must give them a "fair reading" and must "not strain to place a particular interpretation" on them.

{New York recognizes a distinction between "a defamatory connotation from statements … that are alleged to be expressly false … [and] '… false suggestions, impressions and implications arising from otherwise truthful statements.'" "The concern that substantially truthful speech be adequately protected has led courts to embrace different standards for" claims involving such speech. For example, the Appellate Division of the New York Supreme Court has held that a plaintiff must make "a rigorous showing that the language of the communication [expressing truthful statements] as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference."

Those heightened standards do not apply, however, to a case, such as this one, "of allegedly false statements of verifiable fact, with inferences flowing from those facts." For instance, Channel One has not argued that Walter's literal statements about the death of Goldfarb's wife—i.e., that she was 28 years old and died suddenly one month after her conversation with Walter about Goldfarb killing his son—were substantially true. And Goldfarb expressly denies the factual accuracy of those statements. See Pl. Opp. at 20 ("[Goldfarb's wife] was actually 51…. Goldfarb's wife did not die a month after Litvinenko's poisoning. She died of cancer three and a half years later." Thus, Goldfarb need only make the ordinary showing that Channel One's statements were reasonably susceptible to the defamatory connotation that he killed his wife.}

The conversations that Channel One broadcast on March 20, 2018 and March 30, 2018 about the death of Goldfarb's wife are "reasonably susceptible of a defamatory connotation." During the March 20 episode of Let Them Talk, immediately after citing a purported conversation with Goldfarb's wife as his primary evidence for the accusation that Goldfarb killed Litvinenko, Walter claimed that she, a young, 28-year-old woman, died suddenly only a month after she told Walter that Goldfarb had killed Litvinenko.

This discussion first alleged that Goldfarb was a murderer through Walter's accusation that he killed Litvinenko. Then, Walter suggested a motive that Goldfarb might have for killing his wife—namely, to prevent her from telling others of his alleged responsibility for Litvinenko's death. Furthermore, by claiming that she was young and died suddenly, Walter implied that no plausible innocent explanation existed for her death, since ordinarily young women do not die suddenly. And by highlighting the supposed close temporal connection between her death and Litvinenko's, Walter implied a causal connection between the two.

The conversation aired during the March 30 episode of Man and Law was very much in the same spirit. Walter once again conveyed to a reporter that Goldfarb's wife told him that Goldfarb had killed Litvinenko, and that she then died within a month. This was immediately followed by the narrator's conspiratorial commentary: "She confessed that her husband killed Alexander and herself died a month later at the age of 28. That's strange." Taken collectively, these purported facts—Goldfarb's motive for killing his wife, the temporal proximity between her death and the events from which that motive arose, and the absence of any alternative innocent explanation for her death—constitute "a reasonable basis for drawing the defamatory conclusion" that Goldfarb killed her.

In other cases, the New York Court of Appeals has found published words defamatory when they would justify analogous inferences. And the defamatory connotation of the words uttered during the March 20, 2018 Let Them Talk episode is further reinforced by the exchange that immediately followed. After describing Goldfarb's wife's death, Walter continued: "That's how it started. Then it went on and on. Also Berezovsky. The death of Boris Berezovsky brings about many questions." Other guests then speculated that Berezovsky, who died in "mysterious circumstances" in 2013, was the victim of foul play. The claim that what began with the death of Goldfarb's wife "went on and on" to culminate in Berezovsky's death, which in fact occurred in sufficiently mysterious circumstances that the coroner could not rule out foul play, clearly suggests that Goldfarb's wife, too, died from foul play.

In short, because the words Channel One broadcast on March 20, 2018 and March 30, 2018 are susceptible to being interpreted as conveying the accusation that Goldfarb killed his wife, Goldfarb's claim that Channel One libeled him with respect to those statements survives summary judgment. It is for the factfinder to decide at trial whether that defamatory meaning would likely have been "understood by the ordinary and average" viewer.

If you're curious whether S.D.N.Y. is a proper forum for the case, and whether it has jurisdiction over Russia One, see this opinion. Congratulations to Bertrand Charles Sellier and Richard Edward Rosberger (Rottenberg Lipman Rich P.C.) and Rodney Alan Smolla (Vermont Law School), who represent plaintiff.