Chang-Sin Lee v. Dong-A Ilbo

ERVIN, Circuit Judge:

On September 9, 1985, two intelligence agencies of the South Korean government issued a sixty-two page “press release” announcing the disruption of two North Korean spy rings operating , in the United States and West Germany. In Virginia, the defendants, six newspapers and one public television station, reported the announcement, essentially by repeating the story as reported in the Korean press. Plaintiff Chang-Sin Lee, a South Korean citizen living in New York, was identified in the accounts as a North Korean agent, and subsequently filed this libel action. The trial court granted summary judgment for the defendants based on the official report exception to the general rule of republication liability. Lee appeals. We reverse and remand.

Chang-Sin Lee immigrated to the United States in 1975 and is now a permanent resident alien. He graduated from Western Illinois University in 1984 and resides in New York City.

The press release was issued in South Korea by the National Security and Planning Agency and the Military Security Command, two South Korean intelligence agencies. It described the disruption of a student-run, North Korean spy ring operating in the United States at Western Illinois University. The announcement was widely publicized in South Korea.

The defendants subsequently reported the announcement, relying mainly on the accounts in the South Korean press. In fact, some of the defendants simply reprinted the story as it appeared in Korea, and the television station aired a rebroadcast from the Korean Broadcasting System. All but one of the stories were in Korean, and all were targeted at the Korean-American community.

The court below held that the official report privilege extends to the republication of all government reports, foreign and domestic. To overcome the privilege, a plaintiff must show malice. Because Lee could not show malice, the court granted the defendants’ motions for summary judgment.

The issue on appeal is both novel and straightforward. Does the official report privilege apply to reports based on the acts of foreign governments? The privilege is largely a creation of state defamation law. All parties agree that the applicable law is that of Virginia, where the statements were made. The Supreme Court has not found the privilege to be of constitutional dimension. See Medico v. Time, Inc., 643 F.2d 134, 143-45 (3d Cir.1981). The Court, however, has recognized the existence of First Amendment considerations in the reporting of official actions. Id.; see Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (prohibiting criminal sanctions against publishers of information from confidential government proceedings); Cox Broadcasting v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (prohibiting invasion of privacy action for publication of public record — the name of a deceased rape victim); Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) (holding based on lack of actual malice). In Pape, the Court noted that “perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like.” Pape, 401 U.S. at 286, 91 S.Ct. at 637. At least one lower court has taken this concern and created a constitutional privilege in the reporting of newsworthy events. Edwards v. National Audubon Society, 556 F.2d 113, 120 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977).

Under the republication rule, one who repeats a defamatory statement is as liable as the original defamer. Medico, 643 F.2d at 137. The rule is based on the legal fiction that the republisher adopts the defamatory statement as his own. Id. The official or fair report privilege is an exception to the rule of republication liability. It is a privilege to publish accounts of public proceedings or reports despite their defamatory nature. Id.; Alexandria Gazette Corp. v. West, 198 Va. 154, 159-60, 93 S.E.2d 274, 279 (1956); Restatement (Second) of Torts § 611.¹ Apparently, American courts have never considered whether the privilege applies to reports based on the acts of foreign governments, although at least one English court has addressed the issue.²

The rationales underlying the privilege are particularly important because of this lack of prior law. The courts cite three policy rationales to support the official report privilege: agency, public supervision, and the public’s right to know. See Medico, 643 F.2d at 140-42; Webb v. Times Publishing, Inc., 2 Q.B. 535, 3 W.L.R. 352, 2 All E.R. 789 (1960). Under the agency rationale, a reporter acts as an agent for those who could inform themselves. Medico, 643 F.2d at 140-41. Here, the defendants reported summaries of the press release which was publicly available, at least in Korea.

The public supervision rationale is the idea that government should function openly with an eye toward its public responsibilities. Id. at 141. This rationale does not generally apply to the acts of foreign governments who are not accountable to the American people. It is arguable, however, that South Korea’s position as an ally and foreign aid recipient creates an American public supervision interest, that Americans need to know about the activities of such governments in order to supervise our own government.

The informational rationale, or the public's right to know, focuses on the public’s interest in important matters. Id. at 142. This is the most directly applicable rationale in the instant case, and the district court relied on it to apply the privilege. Americans in general, and Korean-Americans in particular, have a strong interest in learning of the disruption of a spy ring in the United States by an American ally, South Korea. Espionage in the United States is clearly a legitimate public concern.

Standing alone, an analysis of these policy considerations supports the extension of the official report privilege to reports of foreign government activities. The information was publicly available, so the agency rationale applies; the activities of an ally and foreign aid recipient arguably create a supervisory interest; and foreign espionage in the United States is important to the public. Other considerations, however, lead us not to extend the privilege in this case.

Three primary considerations weigh against extending the privilege. First, the rationales are not as persuasive in the context of foreign government activities. The informational rationale applies to all matters of importance no matter what their source, while the other rationales are less important when reports involve foreign governments. The agency rationale is weakened because the information here was available only in Korea. It was not readily available to those who chose to inform themselves, so the defendants were not acting as mere agents by reporting it. The public supervision rationale applies only indirectly. The American public cannot influence the Korean government directly, and cannot influence many foreign governments at all.

Second, we usually extend the privilege because of the nature of the relationship we share with our own government. We are familiar with the workings of our government and consider it to be open and reliable. We can also hold our own government accountable for its actions. Foreign governments, like nongovernmental sources of information, are not necessarily familiar, open, reliable, or accountable. Therefore, we think it unwise to provide a blanket privilege to those who report the activities of foreign governments.

Third, extending the privilege in a piecemeal fashion would be extremely difficult. Establishing criteria based on openness and reliability would be hard enough, but objectively applying the criteria would be nearly impossible. Reasonable persons could differ as to which governments, besides our own, exhibit the openness and reliability that warrant an extension of the privilege. Because negligence and falsity are part of a plaintiffs burden under Virginia law, it is unnecessary to extend the privilege any further. See Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 151, 334 S.E.2d 846, 852 (1985).

The dissent suggests making a case-by-case determination based on the importance of the information. There are several problems with this analysis.

First, the dissent places too much emphasis on the public’s right to know and the importance of the defamatory information. While the “matters of public concern” are “at the heart of the First Amendment’s protection,” First Union National Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 1415, 55 L.Ed.2d 707 (1978), the State’s interest in compensating private individuals for injury to their reputation remains strong and legitimate and must be balanced against the First Amendment interest. See Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 757, 105 S.Ct. 2939, 2944, 86 L.Ed.2d 593 (1985). In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court held that the fact that expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times. Id. at 343, 94 S.Ct. at 3008. The Court allowed the plaintiff, who was a private figure, to recover actual damages so long as he was able to prove some fault on the part of the defendant, despite the public nature of the defamatory statement. Id. at 347-50, 94 S.Ct. at 3010-12. Likewise, the fact that the defamatory expression concerned a public issue should not entitle the defendant to the common law protection of the official reports privilege.

Second, the dissent’s analysis would result in a blanket application of the privilege. The mere fact that the report was officially issued by a foreign government would give that report an imprimatur of “public interest.” The reports of a foreign government will almost always be of great importance to some individual or some group in a heterogeneous society such as our own. In Webb, the court found that the information regarding the sexual liaisons of a married woman was deemed to be worthy of “public interest” status because the subject matter dealt with testimony that was given in a domestic criminal trial. Such a standard would lead to an unlimited application of the privilege while affording no protection to the defamed private person.

Third, proper attribution in the republication by itself would not necessarily discourage false or undeserved reliance on a foreign government’s report. While most readers would be skeptical of reports issued by governments that are openly hostile to the interests of the United States or of Americans, they would be hard pressed to evaluate the reliability of reports issued by other allegedly “neutral” governments. We are unwilling to impute to most Americans sufficient knowledge with regard to the due process procedures of foreign courts or the accountability of foreign government agencies. Therefore, even with proper attribution, we are not willing to expand the applicability of the privilege.

We do acknowledge that not extending the privilege might have some chilling effect on newspapers and television stations. Without the privilege, they assume the risk that hastily gathered and promulgated information is incorrect. Mills v. Kingsport Times-News, 475 F.Supp. 1005, 1011 (W.D.Va.1979). Even mere negligence constitutionally can be the basis for liability when the defamed party is a private person, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); The Gazette, Inc. v. Harris, 229 Va. 1, 15, 325 S.E.2d 713, 727 (1985), cert. denied sub nom., Fleming v. Moore, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 643 (1985). We believe, however, that the burden on the press here in verifying reports from foreign governments does not sufficiently differ in nature or scope from the burden it bears when it receives information from domestic non-official sources. Because we find that foreign governments are not necessarily more reliable than domestic non-official sources, we are not willing to enlarge the scope of the privilege to include information from such governments. Some countries may take advantage of our liberal First Amendment rights in order maliciously to defame or, carelessly and without adequate inquiry, excoriate private parties. In our opinion, therefore, the burden on the press is outweighed by the possible harm to the reputation of private persons.

Based on the preceding analysis of the official report privilege, its underlying rationales, and other considerations, we hold that the privilege does not apply to reports based on the press release issued by the South Korean government. So long as a plaintiff must prove falsity and negligence, it is unnecessary to extend the privilege any further. Summary judgment for the defendants based on the privilege was inappropriate, and the case is

REVERSED AND REMANDED.

1 . § 611. Report of Official Proceeding or Public Meeting. The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

2 . Webb v. Times Publishing Co., 2 Q.B. 535, 3 W.L.R. 352, 2 All E.R. 789 (1960). In Webb, the court made a limited extension of the privilege to protect the reporting of a Swiss judicial proceeding involving an English citizen. The court emphasized the nature of the activity, a judicial proceeding, which has feu¹ more reliability than the press release of an intelligence agency. Still, the court refused to invoke a blanket privilege for all foreign judicial proceedings. The court found the report to be privileged, however, based on the legitimate and proper interest the English public had in it.