Libel Lawsuit Against N.Y. Times and Taylor Lorenz, Related to Meaning of Word "Leaked," Can Proceed

From Judge Edgardo Ramos's decision Tuesday in Jacob v. Lorenz (S.D.N.Y.) (the underlying allegedly libelous article appears to be the one here):

Plaintiffs Ariadna Jacob and her company, Influences, Inc., brought this defamation action against Defendants Taylor Lorenz and the New York Times. Plaintiffs allege that a New York Times article authored by Lorenz included several defamatory statements about Jacob….

[T]he Court granted in part and denied in part Defendants' motion to dismiss the second amended complaint … on June 21, 2023. The Court held that Plaintiffs had sufficiently alleged a claim with respect to one statement in the article suggesting that Jacob had leaked an individual's nude photographs. Defendants now move for reconsideration and ask the Court to dismiss the surviving claim based on that statement…. [T]he motion is DENIED….

[The] lone surviving statement—referred to here and in the Court's prior opinions as Statement 12—concerns Jacob's alleged distribution of nude photographs of influencer Devion Young.

On August 11, 2020, Lorenz emailed Jacob and her team with a list of details that she was "planning to report." That list included the assertion that "Ms. Jacob distributed illicit photos of Mr. Young to others (Note: we have screen recordings showing these messages)." Jacob's representative responded with a statement from Jacob's attorney that said: "Illicit photos of Mr. Young were brought to Ms. Jacob's attention. As Influences was working on multiple business transactions with Mr. Young, Ms. Jacob informed an internal consultant of the pictures [sic] existence, but at no point did she publicly 'leak' the photos, as Mr. Young has claimed."

The next day, Lorenz replied: "Regarding Mr. Young's illicit photos, Mr. Young is not alleging that Ms. Jacob publicly 'leaked' photos. Rather, we have screen recordings showing that Ms. Jacob distributed these photos to others via text message. Does Ms. Jacob care to comment, clarify, or respond to this?" Jacob's attorney answered: "Before responding to this point, are you able to share the videos referenced here for accuracy and validity?" Lorenz stated that the materials could not be shared. And she reiterated that "Mr. Young and others are alleging that Ms. Jacob privatley [sic] distributed Mr. Young's illicit photos to others. No one is alleging that she publicly leaked them." Jacob's representative referred Lorenz to the statement provided by Jacob's attorney. In a final follow-up message providing an updated list of allegations, Lorenz included the assertion: "Ms. Jacob privately distributed nude photos of Devion Young via text message." Jacob's representative again referred Lorenz to the statement from Jacob's attorney.

The article was published on August 14, 2020. With respect to the photographs of Young, the article stated: "'Right before we parted ways she leaked my nudes and sent them to business partners, people in my house and potential investors to slander my name, saying I was unprofessional,' Mr. Young said. 'Ms. Jacob informed an internal consultant of the picture's existence,' Ms. Jacob's lawyer wrote, and clarified that she did not 'publicly' leak the photos."

According to the SAC, the article "alleged that Jacob leaked the photos to industry people for leverage because Young wanted to leave." Plaintiffs assert that this claim "is completely false, and Defendants knew it." The photographs became public weeks before Plaintiffs and Young decided to part ways, so Jacob could not have leaked them in retaliation. Plaintiffs also state that, at the time, Influences had no "business partners" to whom Jacob could have "leaked" the photographs. The SAC does acknowledge that Jacob informed an Influences staff member about the photographs and alerted Young's house manager to the situation. But Plaintiffs allege that "[a]t no point did Jacob publicly disseminate or 'leak' the photographs." …

[In the earlier decision, t]he Court explained that "the relevant prepublication communications show that Lorenz called into question the truth of the assertion that Jacob 'leaked' the photos, and she nevertheless published the statement saying as much." …

Defendants argue that reconsideration is warranted because "the Court misconstrued the record by failing to distinguish between Ms. Lorenz's use of the phrase 'publicly leaked' and the unmodified term 'leaked.'". According to Defendants, "both parties understood the word 'leak' just meant 'unauthorized disclosure.'" By contrast, the parties used the term "publicly leak" to refer to "a broader public disclosure." Based on this purported distinction, Defendants assert that the Court "clearly erred in concluding that Ms. Lorenz understood the word 'leak' to be synonymous with 'publicly leak.'"

These arguments are not persuasive. As the Court explained in its prior opinion, Lorenz's prepublication messages distinguished between allegations that Jacob "privately distributed" the photos and allegations that Jacob "publicly leaked" the photos. The communications revealed Lorenz's understanding "that (1) 'leaking' connotes sharing something with a broad audience rather than privately, and that (2) 'no one' alleged that Jacob had leaked Young's photos." Despite that understanding, the article included Young's quote that Jacob "leaked my nudes and sent them to business partners, people in my house, and potential investors." As the Court explained, that statement suggested that Jacob both leaked the photos and privately distributed them to business partners and others.

Defendants' proposed distinction between "leaked" and "publicly leaked" does not change the Court's conclusion. For one, the parties' prepublication communications do not indicate that Lorenz was drawing such a distinction. Lorenz repeatedly referred to allegations that Jacob had "distributed illicit photos of Mr. Young to others." Lorenz also made clear to Jacob's team that "Mr. Young is not alleging that Ms. Jacob publicly 'leaked' photos."

None of these statements, however, support Defendants' assertion that Lorenz understood "leak" to mean "any unauthorized disclosure of information." In fact, Lorenz's messages did not even use the term "leak" without the "publicly" qualifier. It is difficult to see how the emails could show Lorenz's understanding of a distinction between two terms when she used only one of them. As the case progresses, of course, Defendants will have the opportunity to offer evidence demonstrating that Lorenz understood the two phrases to have different meanings. But at this stage, drawing all reasonable inferences in Plaintiffs' favor, the Court cannot conclude that Lorenz was relying on Defendants' proposed distinction.

Nor is the Court persuaded by Defendants' argument that using the term "leak" to refer to the private sharing of information is "wholly consistent" with language in Supreme Court and Second Circuit decisions. Regardless of how courts have used the term in opinions about unrelated subjects such as insider trading or naval movements, the question is how Lorenz understood the term—as Defendants themselves acknowledge. Again, based on the record as it stands, the Court cannot say that Lorenz clearly understood the terms "leaked" and "publicly leaked" to have two distinct meanings.

{Defendants' reply brief also cites several cases using the term "'leak' to mean disclosure to an individual or small group." Again, these cases cannot establish Lorenz's understanding of the term. But they are also inapposite because they appear not to involve situations where the material disclosed was already public. In this case, the SAC asserts that the photographs had been in circulation for weeks at the time Jacob allegedly distributed them.}

Finally, Defendants insist that Statement 12 "does not accuse Ms. Jacob of broadly distributing the photographs of Mr. Young to the public at large, but instead focuses on her admitted private disclosure." That argument cannot be reconciled with the text of Statement 12, which said that Jacob "leaked [Young's] nudes and sent them to business partners, people in [Young's] house and potential investors." If the language before "and" had been omitted, this case might look different: Defendants could argue that the alleged distributions to business partners and others were consistent with the allegations Lorenz described in her prepublication emails. Instead, however, the article suggested that Jacob both leaked the photos and privately distributed them to others. That was inconsistent with Lorenz's prepublication characterization of the allegations….

Note that the case turns on the issue of knowing or reckless falsehood by defendants (so-called "actual malice") because New York law so requires. For the court's originally June 21 decision, see here.