Kings County Supreme Court at 360 Adams St.
Kings County Supreme Court at 360 Adams St. (NYLJ/Rick Kopstein)

Media outlets that publicized a police photo of a suspected sexual predator—and then left the picture on their websites long after a misidentified man complained—cannot be held liable for defamation, a Bronx judge has held.

But while Supreme Court Judge Edgar Walker (See Profile) said the New York Daily News and WPIX are absolutely shielded by New York Civil Rights Law §74, the judge found it “unconscionable” that any publisher would refuse to remove an item from its website that it knows to be false. He suggested the Legislature consider revising the law.

Rodriguez v. Daily News and WPIX, 2058/14, began in April 2013 when the New York City Police Department issued a press release seeking the public’s assistance in tracking down an individual wanted for an attempted rape. The emailed press release included a photograph of the plaintiff walking through a subway turnstile and identified him as the suspect.

Four days later, the police department issued a follow-up press release noting that an individual named Amauri Azcona had been arrested in connection with the attempted sexual assault. The department did not reveal that the individual depicted in the prior email was not Azcona.

According to the plaintiff, Arcadio Rodriguez, the Daily News and WPIX were each notified on May 2, 2013 and Aug. 30, 2013 that he was wrongly identified as the perpetrator. It is unclear whether those communications, sent in the wake of the Hurricane Sandy disruption, were actually received.

In any case, the picture remained on the Daily News website until mid-September 2013 and WPIX left Rodriguez’ photo on its website until February 2014, after it was sued, according to Walker’s decision.

Rodriguez sued both media entities for defamation, and both moved to dismiss the complaint under §74, which cloaks the media with an absolute privilege against liability when it reports fairly and accurately on an official proceeding. Rodriguez argued that the emailed press release was an unsworn and unverified document that is not covered under the §74 protection for the reporting on official proceedings.

The Daily News and WPIX argued they had no reason to suspect the police department provided inaccurate information, and claimed that even after the plaintiff informed them of the inaccuracy they had no obligation to issue a retraction or remove the photograph from their websites.

Walker agreed with the media, finding that the issuance of the police department press release qualifies as an official proceeding under the Civil Rights Law, and noted that the reports based on the release were accurate.

“[T]he initial publication of the news articles/reports are absolutely privileged under Section 74,” Walker wrote. “Nor has the court found, or plaintiff cited to, any legal authority under which defendants may be held liable to plaintiff for not promptly removing plaintiff’s photograph from their websites, or for their failure to publish a retraction of the articles/stories, upon being informed that the person in the photograph was not the perpetrator of the sexual assault.”

But the judge was troubled that §74 protects the media even when it declines to correct an error.

“While the court finds it unconscionable that a publisher, whether malicious or not, may refuse to remove a news article/report from its website that it knows to be false, this is a matter for the legislature, not the courts, to address,” Walker wrote.

Emil Samuels of Kelner & Kelner represents the plaintiff. Matthew Leish, assistant general counsel and vice president of the Daily News, represented the newspaper. WPIX was defended by partner Bruce Rosen and associate Sarah Fehm of McCusker, Anselmi, Rosen & Carvelli in Florham Park, N.J.

Rosen said the law makes clear that the media can rely on a police report and has no obligation to investigate its accuracy. Here, Rosen said WPIX had no way of knowing the photograph it had been provided was not the suspect.

Leish said “we are pleased that the court has recognized once again the absolute privilege under the Civil Rights Law that allows news organizations to accurately report on official statements by the police without fear of defamation lawsuits.”

Samuels was not immediately available for comment.