A 2017 New Yorker magazine email to subscribers circulating a story from 2010 that was the basis of a defamation lawsuit—in which four passages were deemed “susceptible to defamatory connotation” in one of numerous court rulings before the suit was dismissed—does not constitute a republication of the article for defamation purposes, a state appeals court has ruled.
In a terse opinion, an Appellate Division, First Department panel, which ultimately dismissed the newly filed defamation lawsuit on statute-of-limitation grounds, wrote that “the email sent by defendant to New Yorker magazine subscribers in April 2017 containing a hyperlink to an article published in the magazine in July 2010 does not constitute republication of the article.”
The unanimous panel pointed out that “the article was unmodified and had been continuously archived on the same website since the printed version was first published.”
“Moreover,” the panel wrote, “it is not alleged that the 2017 email … contained any defamatory statements about plaintiff.” The panel then stated that “a reference to an article that does not restate the defamatory material is not a republication of the material.”
The plaintiff in the original lawsuit and in the more recent republication lawsuit—which was filed in 2017 in state court—is Peter Paul Biro. He is a forensic scientist and art authenticator who has been described by Manhattan Supreme Court Justice Kathryn Freed in a lower court opinion as being “known in the art world for devising scientific methods of authenticating art through fingerprint analysis.”
In 2011, Biro first brought a libel and injurious falsehood action in the U.S. District Court for the Southern District of New York over the 2010 New Yorker article, which he has said included “large portions” of writing about and concerning him.
Both that lawsuit and his more recent 2017 defamation suit in Manhattan Supreme Court have named Conde Nast, a division of Advance Magazine Publishers Inc., as the central defendant. Conde Nast publishes The New Yorker.
The 16,000-word story in question, by David Grann, ran in the July 12-19, 2010, issue of The New Yorker and was titled, “The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art.”
While the article does not open with discussing Biro, he becomes a central figure in the lengthy piece. And according to Freed’s 2018 decision tossing out Biro’s more recent defamation action, Biro had alleged in his 2011 lawsuit that “the article implied that he was a fraud who sells fake art and was incompetent at art authentication.”
In that 2011-filed action, there were numerous federal court rulings, according to Biro’s 2017 complaint in state court.
Among those rulings, said Biro, were six District Court opinions and two U.S. Court of Appeals for the Second Circuit opinions.
Ultimately, the District Court dismissed the 2011-filed lawsuit, and the Second Circuit affirmed that dismissal.
But earlier in the federal litigation, the District Court ruled at one point, according to Biro and to Freed in her state court opinion, that four passages in Grann’s article were susceptible to defamatory connotation.
In April 2017, The New Yorker sent out to its many subscribers an email that, according to Biro’s complaint, was headed “THE NEW YORKER SUNDAY/A selection of stories from the New Yorker’s archive/The World of David Grann.” It included hyperlinks to six different Grann New Yorker stories.
The email allegedly celebrated Grann’s work and part of it said to readers, “so go ahead and binge-read Grann’s work.”
In his 2017 state court complaint, Biro alleged that “both the original and republished Articles have been widely circulated, and have caused, and continue to cause, damage to plaintiff’s reputation, to his business and to his health.”
But the First Department panel, in affirming Freed’s 2018 dismissal of the state lawsuit as being barred by the statute of limitations, ruled that “a reference to an article that does not restate the defamatory material is not a republication of the material,” citing Klein v. Biben.
The panel then ruled in the April 4 decision that “his action is therefore barred by the one-year statute of limitations for defamation claims … which generally accrues on the date of the first publication.” The panel was comprised of Justices John Sweeny, Sallie Manzanet-Daniels, Cynthia Kern, Jeffrey Oing and Anil Singh.
Richard Altman of the Law Office of Richard A. Altman has represented Biro in both the original federal litigation and the state case.
Reached by phone Friday, he said that he respectfully disagreed with the First Department panel’s decision. He also noted that he and his client intend to seek leave to appeal.
“There are many defamation cases that arise out of republished material,” he said, “and what they basically say is that the context of the republication is crucial.”
“When you have a context like you have here, where the original material is brought to the attention to a new audience, and you’re trying to get people to read something they did not read before, then it’s republished and the statute of limitations begins anew,” he said.
But David Schulz, a Ballard Spahr senior counsel who has represented Conde Nast in both litigations, said by phone Friday that the First Department’s decision “is clear, and is consistent with precedent, and is obviously right.”
“All that The New Yorker did was reference an earlier article and provide a link to it, which people do everyday on the internet,” Schulz said. ”If Mr. Altman were correct, the internet would grind to a halt.”