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Defamation Lawsuit Over Peacock TV Docuseries "Paul T. Goldman" (Based on Book "Duplicity: A True Story of Crime and Deceit") Can Go Forward
From Doe v. Finkelman, decided yesterday by the Florida Court of Appeal by Judge Spencer Levine, joined by Judges Cory Ciklin and Alan Forst:
Appellant filed an amended complaint against the defendants/appellees for defamation per se and conspiracy to defame. According to the amended complaint, defendant Paul Finkelman wrote a book entitled Duplicity: A True Story of Crime and Deceit in which he accused appellant—his ex-wife—of various criminal acts, including prostitution and being the "madam" of a prostitution ring. Based on the book, the defendants created, produced, and published a "docuseries," entitled Paul T. Goldman, which was streamed and distributed on Peacock TV….
The series featured Finkelman as himself, using the alias "Paul T. Goldman." Finkelman revealed his true identity throughout the series. Appellant's amended complaint alleged that the series referred to appellant by a fictitious name, "Audrey Munson." Appellant alleged that she was "easily identifiable as the subject of the false and defamatory statements published by Defendants."
According to the amended complaint, the format of the show was a documentary that operated on "multiple levels." One level was the "real life" story of Finkelman as told by the actual persons involved in the events and by actors portraying the actual persons. The second level was a "making of" documentary where the audience was taken "behind the scenes" during filming and was "privy to parts of the actual creative process."
{The trial court found that the "docuseries" at issue was a single publication rather than multiple publications, and further that the series was not "of and concerning" appellant, and that the statements in the series were not capable of defamatory meaning. We disagree.}
Here's a quick summary of the long opinion:
[1. E]ach episode is a separate and distinct publication giving rise to multiple causes of action….
[2. T]he six episodes provided ample material indicating that the defamatory statements were "of and concerning" appellant…. The trial court found that the series did not mention appellant by name or show any photographs of her without her face blurred. However, as the filmmaker defendants concede, episode six used appellant's real first name, Diana, on two occasions. Further, "[t]he defamed person need not be named in the defamatory words if the communication as a whole contains sufficient facts or references from which the injured person may be determined by the persons receiving the communication." …
[3.] In finding that the series was not capable of defamatory meaning, the trial court found that the series was a "docuseries." The trial court then equated "docuseries," with "docudrama," which the trial court found are "fictionalized and imagined." However, a docuseries and docudrama are not the same. A "docuseries" is defined as "a documentary that is telecast in a series of programs."4 A "documentary," in turn, is "[a] work, such as a film or television program, presenting political, social, or historical subject matter in a factual and informative manner and often consisting of actual news films or interviews accompanied by narration."5 In contrast, a docudrama is "[a] television or movie dramatization of events based on fact."6 A person viewing the six-part "docuseries" would expect to see a show that dealt with actual factual events. Combined with the use of actual news video clips and interviews, the viewer would not expect a "docudrama" but rather would understand it to be a "docuseries." Thus, we find the trial court erred in finding that the docuseries was equivalent to a docudrama and not capable of defamatory meaning….
[4.] The trial court also relied on a disclaimer that appeared at the beginning of each episode for about three seconds, which stated: "Statements expressed by individuals in this series should be taken as speculation or opinion and do not reflect the opinions or beliefs of the producers." Initially, this disclaimer was insufficient because it was directed only to the producers and made no mention of the other defendants. Further, and more importantly, the disclaimer did not inform the viewer that the series was fictional. Even when statements are offered with a qualification, "actionable defamatory statements do not become nondefamatory when, as here, the context of the statements swallows up the caveats." Throughout the series, Finkelman repeatedly stated his story was true….
[5.] The trial court found that Finkelman's story was portrayed as a "descent into fantasy and self-delusion" and no "reasonable and common minded" viewer would understand Finkelman's statements to be factual or credible…. [But i]t is clear that the docuseries is "reasonably susceptible of a meaning which is defamatory." In each and every episode, and throughout the series, Finkelman repeatedly accused appellant of being a prostitute, a madam, and part of a sex trafficking ring. For example, Finkelman accused appellant of living a "secret double life" and being involved in a "multi-million dollar crime ring." Finkelman stated that what he found "turned into a whole new level of criminality."
Finkelman stated that based on appellant's phone records, and his research, he discovered appellant was a "hooker" who had sex with over a thousand men. Based on the same phone records, Finkelman also stated appellant was a madam with a huge business and ten girls working for her. Finkelman stated that a surveillance video with appellant and two women at a park depicted "hookers praying to Jesus for more tricks" and that this was "not a little prostitution ring." An investigator stated that while at a nightclub, Rocco, appellant's alleged pimp, offered appellant to another man for $250. In a "pitch" for the series, Finkelman stated his investigator took a photo of appellant "meeting with her girls" and further stated, "We've got hookers! We got pimps!" Finkelman also accused appellant of murdering her parents and her making it look like a murder-suicide. These are just a few examples of Finkelman's allegations that are replete throughout the series.
In each and every episode, and throughout the series, Finkelman repeatedly maintained that the allegations against appellant were all true and that what was depicted in the series actually happened to him. Although some statements can be "so obviously comedic and nonsensical that no sensible person would take them seriously," that was not how the allegedly defamatory statements were presented in this series. The series was presented in a way to convey indicia of truthfulness, relying on "evidence" such as surveillance videos, interviews with private investigators, actual news clips, and court documents, as well as a photo of Palm Beach County Sheriff Ric Bradshaw. Others, such as the director and the private investigator, offered statements corroborating Finkelman's claims. For example, the director stated Finkelman "had an incredible true story to tell" and that "[t]his is his story." Finkelman himself stated, "It's all true. It happened to me" and "I couldn't make this up."
Finkelman stated that his book, Duplicity, upon which the series was based, was as "accurate as it is unbelievable." Later, Finkelman reaffirmed that Duplicity was 99% true and that only little things were embellished. Finkelman once again confirmed that "[t]he story is true. The events are true." He then clarified that his story was approximately 97% true "and none are made up that have any bearing to criminal events by Audrey Munson [appellant] and what happened to me. Every single thing of that is true." A news clip reported that Finkelman, his lawyers, and his investigators stated they had evidence that appellant was a madam and a working prostitute of a large prostitution ring. Finkelman also assured the director that appellant's double life and sex trafficking were "all true." Finkelman finally stated, "I'm just a regular guy who all this s--t happened to and decided to take some action."
Although at times Finkelman admitted he made up certain scenes and dialogue, at no point did Finkelman admit or suggest that he fabricated the core allegations about appellant being a prostitute, madam, and sex trafficker. Rather, he consistently and adamantly maintained the truthfulness of those allegations. Finkelman's admission to making up certain specific scenes, while maintaining the veracity of those allegations pertaining to appellant, further bolsters the conclusion that the accusations relating to appellant were reasonably susceptible of defamatory meaning. While episode six may have cast doubts on Finkelman's claims concerning Borelli's participation in sex trafficking, at no point did Finkelman ever retract his statements concerning appellant. Simply put, even assuming a viewer watched all six episodes, nothing in episode six exculpated appellant from Finkelman's allegedly defamatory allegations. Finally, since the episodes clearly can bear more than one meaning for the viewer, the question of defamation was not for the trial court to determine….
[6.] The conspiracy to defame counts contained sufficient allegations to set forth a cause of action for conspiracy…. The trial court found that the conspiracy counts did not identify which of the defendants agreed to commit an unlawful act. At this juncture in the proceedings, however, by using the term "Defendants," the amended complaint clearly referred to all of the defendants. The trial court also found that the conspiracy counts did not allege when the agreement to defame appellant was entered. However, there is no requirement that a party allege a specific time when the agreement to defame was entered….
[7.] In moving to dismiss, the defendants argued that appellant failed to provide pre-suit notice as required by section 770.01, Florida Statutes (2023). Although the trial court expressly declined to consider this issue, we note, for purposes of remand, that this statute is inapplicable to this case, which does not involve "media defendants."
Section 770.01, Florida Statutes, states:
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
In the present case, it is clear that the pre-suit notice requirements of section 770.01 were not applicable. The statute applies only to "media defendants." The defendants were not "media defendants" because they were not "engaged in the dissemination of news and information through the news and broadcast media …." The purpose of the statute, which is to afford media defendants an opportunity "to make a full and fair retraction," is not implicated here….
[8.] Although we express no opinion on the ultimate merits of this case, appellant has sufficiently alleged causes of action for defamation per se and conspiracy to defame through the medium of a docuseries widely available through Peacock TV. Peacock TV can be accessed through a streaming service easily and is readily obtainable. Justice Cardozo wrote nearly one hundred years ago, long before the advent of modern technology, that what gives defamation its "sting" is "its permanence of form" which "perpetuates the scandal." The allegations of defamation in this case, through this medium, illustrate the potential for such damage….
Jonathan L. Gaines and Karen L. Stetson (GrayRobinson, P.A.) represent plaintiff.
UPDATE: I originally erroneously called the show "Duplicity: A True Story of Crime and Deceit," but that's the name of the book on which the show is based; my apologies for the error, and thanks to commenter loki13 for pointing it out.
