Defamation Dossier: Michael Cohen’s Defamation Lawsuits Against Fusion GPS and BuzzFeed

Michael Cohen, President Trump’s longtime personal lawyer, recently filed lawsuits against research firm Fusion GPS and BuzzFeed for their roles in creating and publishing the “Steele Dossier.” Commissioned by Fusion GPS, compiled by former British spy Charles Steele, and published in its entirety by BuzzFeed in January 2017, the thirty-five page dossier makes unverified allegations linking President Trump to Russia. The dossier mentions Cohen fifteen times and asserts that Cohen secretly met with Russian officials in Prague during President Trump’s campaign to discuss how to pay Kremlin-associated hackers for targeting Hillary Clinton and that Cohen has an inappropriate and possibly criminal relationship with the Russian government due to his Ukrainian wife’s ties to a Russian property developer.

Deciding that “enough is enough,” Cohen filed the two defamation lawsuits in early 2018, immediately before the statute of limitations for the publication of the Dossier was set to expire. Cohen filed the lawsuit against Fusion GPS and its founder Glenn Simpson in the Southern District of New York and the lawsuit against BuzzFeed, BuzzFeed editor-in-chief Ben Smith, reporter Ken Bensinger, and editors Miriam Elder and Mark Schoofs in New York state court. Cohen has alleged that the dossier included “false and defamatory” information and has caused “harm to his personal and professional reputation, current business interests, and the impairment of business opportunities.”

Who will prevail largely depends on the requisite degree of fault that Cohen must establish. There are two types of fault in defamation cases – negligence and actual malice. The degree of fault is based upon a plaintiff’s classification as a private individual, all-purpose public figure, or limited purpose public figure. Cohen will most likely be considered a limited purpose public figure. Limited purpose public figures are individuals who inject themselves into a public controversy and influence public opinion and/or the outcome of the controversy. Cohen will probably be considered a limited purpose public figure for the controversy of the investigation regarding Trump’s relationship with Russia.

As a limited purpose public figure, to succeed on his defamation claim against BuzzFeed Cohen must demonstrate that BuzzFeed acted with actual malice—that means that BuzzFeed knew that what it published was false or acted with reckless disregard for the truth or falsity of the publication. Although actual malice is an extremely high threshold, Cohen may be able to prove that BuzzFeed acted with actual malice. Cohen can argue that BuzzFeed’s caveat that its “allegations are unverified, and the report contains errors,” constituted an express acknowledgment that BuzzFeed published the dossier with a reckless disregard for its falsity. Additionally, Cohen can contend that the fact that other news organizations declined to publish the document because many of its claims had not been substantiated, coupled with the fact that BuzzFeed did not attempt to determine the veracity of these reports with Cohen himself, indicate that BuzzFeed veered from appropriate journalistic standards and published the article with knowledge of or reckless disregard for its falsity.

Nevertheless, to prevail, Cohen will need to defeat BuzzFeed’s argument that the dossier was not a public concern / of public interest. Statements of public concern / public interest are generally granted protection from liability for defamation because of the desire to provide society with much needed information. Public concern / public interest is a qualified privilege, and as such, can be overcome. In actively defending its decision to publish the dossier Buzzfeed has heavily relied on the argument that the dossier is a public interest / public concern because putting forth the unverified document in full gave Americans a far better understanding of the Russia probe and the actions of elected officials. BuzzFeed has a tenable argument—as stated by BuzzFeed spokesman Matt Mittenthan, “The dossier is, and continues to be, the subject of active investigations by Congress and intelligence agencies…its interest to the public is obvious.” BuzzFeed editor-in-chief Smith presented this same point in a New York Times op-ed by claiming “A year of government inquiries and blockbuster journalism has made clear that the dossier is unquestionably real news. That’s a fact that has been tacitly acknowledged even by those who opposed our decision to publish.”

If anything, Cohen’s lawsuits demonstrate just how complicated defamation laws are. Hutcherson Law understands all of the arguments in the defamation arena and how to effectively utilize them. If someone has published false and inaccurate statements about you, contact Hutcherson Law today to reclaim your good name and reputation.

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