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April 2, 2019updated 30 Sep 2022 7:35am

News agency says it is appealing against damning libel judgment in Buzzfeed ‘king of bullshit news’ case

By Dominic Ponsford

Michael Leidig and Central European News say they have filed a notice of appeal after their $11m libel action against Buzzfeed was thrown out in a damning summary judgment issued by a judge in New York.

CEN’s lawyer Harry Wise III argues that the judge erred in law with his summary judgment and therefore the case should go to trial.

The legal case against Buzzfeed began in January 2016 following a 5,000-word article published by the news website which dubbed Leidig “The king of bullshit news”.

The judgment stated that three “veteran journalists” worked for over five months looking into the facts behind CEN’s news output in order to write the article.

At the conclusion of the investigation, the judgment said: “The evidence assembled by Buzzfeed News suggests that an alarming proportion of CEN’s ‘weird news’ stories are based on exaggeration, embellishment, and outright fabrication.”

CEN and Leidig sued Buzzfeed because they said the article falsely suggested they were “in the business of publishing news articles presented as true that are false”.

In particular, CEN contested the suggestion that it had made up five stories:

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  • The ‘cabbage story’ about people in China walking cabbages as pets
  • The ‘sashimi tapeworm story’ about a Chinese man who contracted tapeworm from eating too much sashimi
  • The ‘pink kitten story’ about a Russian woman who died her kitten pink causing it to die
  • The ‘nude women story’ about some Russian women who stripped naked and lost their jobs as a result
  • And the ‘two-headed goat story’ about the birth of a two-headed goat on a farm in China.

Buzzfeed filed a motion seeking to get the CEN claim struck out, arguing it could not establish a “genuine dispute of material fact”.

In order to win the case in a US court CEN had to prove five elements, according to the judge:

  • A written defamatory statement of fact concerning the plaintiff
  • Publication to a third party
  • Fault (either negligence or actual malice)
  • Falsity in the defamatory statement
  • Special damages or per se actionability (defamatory on its face)

The court noted that “the burden of proving the falsity of a statement rests with the plaintiff”. This is the opposite of UK law.

The judge said: “Buzzfeed argues that plaintiffs cannot show the falsity of the allegedly defamatory statements, and thus plaintiffs’ claims must fail. The court agrees.

“In the face of repeated instances where Buzzfeed points to specific evidence supporting the truth of the article, plaintiffs’ sole rejoinder is that neither Leidig nor any CEN employee admitted to knowingly publishing ‘a fake news story’ or to ‘add[ing] phoney quotations to a story’.”

The judgment goes into detail on each of the disputed stories:

1) The cabbage story

“Plaintiffs claim that the quotes contained in the cabbage story are true, and that the persons quoted are real. However, deposition testimony from Leidig and CEN’s employees belie these claims.

“Leidig could not verify the quotes, but claimed that John Feng a journalist employed by CEN, was responsible for writing and researching the cabbage story. Yet Feng admitted that he did not work on the cabbage story because he started work at CEN only two months after CEN distributed the story to clients.

“Further, when Feng researched the cabbage story in connection with the article, he was unable to verify the quotes CEN included in their story. In fact, Feng ultimately verified Buzzfeed’ s findings that the cabbage story originated from an artist who started placing cabbages on leashes as part of his artistic work.

“Other than Leidig’ s self-serving and discredited testimony, which is plainly insufficient to support a motion for summary judgment, plaintiffs offer no evidence regarding the cabbage story’s veracity.

2) The sashimi tapeworm story

“Plaintiffs do not offer evidence supporting the veracity of their version.  Plaintiffs fail to provide any support for their position that Buzzfeed’s reporting on the sashimi tapeworm story was false.”

3) The pink kitten story

“Plaintiffs present no evidence to show that Lenina’s kitten was dead at the time they reported the pink kitten story.

“Plaintiffs cannot even demonstrate that they investigated the kitten’s status before writing the pink kitten story. That is, plaintiffs (once again) could not depend on their own reporting database to determine who wrote the story and who could verify its contents…

“In sum, plaintiffs provide no evidence to refute Gawker’s, Antiviral’s or Buzzfeed’s reporting that the kitten was alive when the pink kitten story was first published.”

4) The nude women story

“During his deposition, Leidig could not provide any details regarding the nude women story, including the source of the quotes that were used in CEN’ s reporting of the story.

“Leidig assumed that such details, including the names of the women as reported by CEN, arose from other Russian media outlets. Plaintiffs claim that they were merely parroting Russian media reports, and did not falsify names or quotes.”

5) The two-headed goat story:

“Buzzfeed questions how Plaintiffs managed to get a quote for CEN’s two-headed goat story from the farmer when local news agencies were unable to do so, implying that the quotes are fabricated.

“Leidig stated in his depositions that he does not know where the quotes in the two-headed goat story came from.

“After the article was published, Feng was unable to verify CEN’s reporting or find any of the disputed quotes in the article, even though he allegedly managed to find other local-media interviews with the farmer that he translated which did not contain the details CEN reported.

“Under these circumstances, it does not appear that anyone at CEN ever spoke directly with the farmer.

“Plaintiffs fail to provide any support for their position that Buzzfeed’s reporting on the two-headed goat story was false.”

A further statement disputed by CEN implied that the agency’s stories were false because “CEN’ s stories frequently contain lines from someone that no-one else could persuade to talk”.

The judge said: “Plaintiffs have presented no evidence to refute a single specific instance in the article where Buzzfeed alleges CEN falsified a quote. Thus, plaintiffs must rely on self-serving blanket denials that they do not falsify quotes.”

Explaining his decision to lodge an appeal, CEN’s lawyer Harry Wise III said: “Although the trial judge is a fine and experienced judge, libel law is something of an esoteric area, and, in this case, he got it wrong.

“The mistake, based on a misreading of a 2000 appellate decision, is one that should strike fear into the heart of anyone who might be the subject of a… takedown like the Buzzfeed piece, because it caused the judge to discount the sworn testimony of Mr Leidig and other journalists at CEN who were deposed (questioned under oath), that neither Mr Leidig, or any of the others had ever made up a story or added a fake quote to a story.

“The idea that the sworn testimony of a libel victim is somehow less creditworthy than other evidence is a pernicious one, and I intend to get this result reversed, so the case can go to trial, where it belongs.”

Following last week’s judgment, a spokesperson for Buzzfeed said: “From the outset of this baseless lawsuit, Buzzfeed has stood firmly behind the accuracy of its reporting and cooperated with the court at every step of the process.

“Today Judge Marrero vindicated that reporting, finding no falsehoods in the article cited by the plaintiffs, who he describes as ‘self-serving and discredited’ [Judge Marrero said CEN’s testimony in support of the ‘cabbage story’ was ‘self-serving and discredited’].

“The judge’s decision represents a hard-earned victory for thorough, truthful journalism.”

Disclosure: The author of this piece has offered advice to Michael Leidig on a voluntary basis in his efforts to set up a not-for-profit organisation to support freelance journalists call The Fourth Estate Alliance.

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