This was originally posted on the SGR Blog.
Was There Liability for Defamation? Or Was Communication Privileged?
A mother believed her son was bullied and harassed by another participant at junior tennis lessons, training and events, and sent email to the sports’ governing body. As a recent case illustrates, the Court was called upon to determine if that communication was defamatory or privileged.
Melani Weitz reported, via email, to a United States Tennis Association official that her son, Daniel, was being bullied by Matthew Porges at USTA junior tennis tournaments and other tennis programs and events. The bullying ranged from offensive name-calling to physically menacing behavior, and it caused Weitz to fear for her son’s safety. Porges “[couldn’t] understand,” she wrote, “how a child like [Porges was] allowed to continue to compete or even be associated with the USTA.” The email also noted that Porges had been “kicked out” of two tennis facilities and instruction programs on Long Island. Litigation ensued.
The complaint did not assert that the allegations of bullying were defamatory—but, instead, that Porges had not, in fact, been thrown out of either tennis program. Weitz’s assertions to the contrary were false and caused him “injury in his trade [and] chosen profession.” Weitz moved for summary judgment dismissing the complaint, contending, among other things, that the allegedly defamatory statements were protected by the common interest qualified privilege and that there was no evidence that they had been made with malice. In 2013, Porges, was a member of the USTA and a ranked player in his age group. He trained at several tennis facilities and with various coaches and programs, mainly on Long Island and in Queens. Daniel Weitz also played USTA junior tennis and knew Porges from tournaments, as well as from group lessons, tennis camps, and other programs.
Problems arose between Matthew and Daniel. Daniel alleged that Matthew, who was much bigger than him, “called [him] names and bull[ied him] as well as other kids.” In terms of the name-calling, “the main two words” that Matthew used with Daniel were “****” and “*****t.” That happened during tennis lessons and also at tournaments. When Matthew and Daniel played against each other at a tournament at the Alley Pond Tennis Center, for example, Matthew threw his racquet and called Daniel names during changeovers. Matthew’s mother, Daniel recounted, who was watching the tournament, taunted Daniel during “a good amount of the match.” At the end of the match, Matthew kicked Daniel’s Powerade bottle across the court and picked up Daniel’s racquet bag and threw it.
As a result of these and other similar incidents, Weitz called Julie Bliss, who was, at the time, the Director of Junior Competition for the USTA’s Eastern section. Bliss’s role at the USTA included overseeing all junior tournament play. Weitz told Bliss that Daniel and Matthew were both scheduled to play at an upcoming tournament. But, because Daniel was “afraid of [Matthew]and the way that he behaved,” Daniel did not want to compete against him. More broadly, Weitz said, Daniel “[didn’t] need to be bullied every time he play[ed] a match with [Matthew], and [she] was afraid for his safety and safety was a huge issue.” Bliss asked Weitz to put her concerns in writing.
Accordingly, on August 27, 2013, Weitz emailed Bliss. She began her message by noting that Bliss had told her to “put our conversation [of] last week about [Matthew] in writing.” And then recounted, in a series of bullet points, that she and Bliss had discussed: Matthew’s bullying of Daniel; his kicking of Daniel’s Powerade bottle and racquet bag after a match; “calling [Daniel] names I won’t repeat”; and that Daniel refused to play in tournaments in which Matthew was entered. One of the bullet points stated that Matthew “[had] been kicked out of Robbie Wagner Tennis Academy and Sportime”—two tennis fitness and instruction facilities on Long Island. Weitz recommended that Bliss “call Mike Kosoff or Lawrence Kleiger [from Sportime] to discuss.” And concluded her email by stating: “Based on [Matthew’s] behavior during the USTA tournaments, I can’t understand how a child like this is allowed to continue to compete or even be associated with the USTA. The whole thing is very upsetting to me, I grew up playing USTA tournaments and there has never been any child allowed to behave in this manner and still compete.”
Upon receipt of the email, Bliss reached out to several individuals in the junior tennis community to ask for their input regarding Matthew’s behavior, including individuals involved with Robbie Wagner TA and Sportime. On September 4, 2013, Michael Kossoff, the Director of Tennis at Sportime’s Syosset and Bethpage facilities, responded to Bliss in an email. He wrote: “[Matthew]was a major problem for us, and we no longer allow him to play at our facility. His behavior was [some] of the worst we have ever seen.”
That same day, Robbie Wagner, the president and owner of Robbie Wagner Tournament Training, also emailed Bliss. He said that there were “[n]o real problems” with [Matthew]. But, at the same time, he indicated that Matthew’s former coach “would not teach him anymore,” and therefore, his family had “left” the program. Wagner noted that, “[t]his semester,” Matthew was “back” taking private lessons, but he was not “allowed to participate in drill programs at RWTT.”
In early September, Weitz emailed Bliss again and shared with her a screenshot of a “very disturbing” message that had been sent by Matthew to one of Daniel’s friends (another tennis player) through Instagram. The message said, “I would tell u to hang urself in the shower but u prob don’t even have one cuz ur house is so small.” Daniel told his mother about another incident involving social media, in which Weitz posted an embarrassing video on Facebook of a player at Robbie Wagner TA being thrown into a garbage can or dumpster.
In August 2014, Matthew, by his parents, sued Weitz to recover damages for common-law defamation and defamation per se. The defamation causes of action were predicated on a single aspect of the email that Weitz sent to Bliss: her assertion that Matthew had been kicked out of Robbie Wagner TA and Sportime. According to Matthew, he had “never been removed, suspended or kicked out” of either program. Weitz’s claims to the contrary, Matthew alleged, the assertions were part of “a campaign of harassment,” the effects of which included “injury in [Matthew’s] trade [and] chosen profession.”
In June 2018, Weitz moved for summary judgment dismissing the complaint. And contended that the allegedly defamatory statements were protected by a qualified privilege and that there was no evidence that they were made with malice, and, in any event, the statements were true, or at least substantially so. Matthew opposed the motion and cross-moved for summary judgment on the issue of liability on the common-law defamation and defamation per se causes of action.
Supreme Court denied the motion and the cross motion, concluding that neither party had demonstrated entitlement to judgment as a matter of law. Both Matthew and Weitz appealed.
The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se.
But Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether. A statement is protected by a qualified privilege when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest or duty. The rationale for applying the privilege in those circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.
There is no bright line test by which the Courts identify with exactitude those occasions which are privileged and those which are not. Of particular relevance here, Courts have applied the so-called common interest privilege to shield from defamation litigation statements made in a good faith effort to address a potentially unsafe environment which children in the declarant’s community frequented. The privilege has been extended to communications that were motivated by an asserted concern for the best interests of the children to whom the communication pertained. And has been applied to statements concerning unsportsmanlike behavior and otherwise antisocial conduct —among adults—made by members of a sports club to the club’s executives. Ultimately, whether the privilege applies turns on whether, given the relation of the parties and the surrounding circumstances, there is a reasonable ground for supposing an innocent motive for giving the information and to deprive the act of an appearance of officious intermeddling with the affairs of others.
The appeals Court concluded that Weitz established, prima facie, that her email to Bliss was protected by a qualified privilege. Weitz unquestionably had an interest, as a parent, in complying with Bliss’s request that she put her concerns in writing and thus reporting, in a more formal way, serious allegations of bullying—none of which were alleged to be defamatory—that, in her view, put her son’s physical and emotional well-being at risk. What’s more, Weitz was not only aware of incidents involving Daniel, but other young tennis players as well. They ranged from troublingly offensive name-calling and physically intimidating acts (such as throwing Daniel’s racquet bag and kicking his beverage bottle), to posting embarrassing videos of other players on social media, and even suggesting, in a message sent through Instagram, that a child should “hang [him]self in the shower.” Society has a strong interest in not “stifling” reports of that sort of behavior to the appropriate authorities, whether they be school officials, or, as here, sports administrators.
Bliss had a corresponding duty, given her role overseeing USTA junior tournaments, to ensure that the integrity of those tournaments was not undermined by unsportsmanlike behavior, and that competitors were free to compete without the fear of being bullied or harassed. Moreover, aside from being the parent of a current USTA junior competitor, Weitz herself had grown up playing USTA junior tournaments and remained active in the sport as an adult, which provided a further basis for inferring an innocent motive for giving the information about Matthew to Bliss.
But the shield provided by a qualified privilege may be dissolved if the plaintiff can demonstrate that the defendant spoke with malice. Malice, in that context, can be established in two ways: by showing either common-law malice, i.e., spite or ill will, or actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth.
In order to demonstrate the existence of a triable issue of fact with respect to common-law malice, an allegedly defamed plaintiff must show that a jury could reasonably conclude that the speaker spoke out of spite or ill will, and that such malicious motivation was the one and only cause for the publication. Matthew could not make that showing here. Matthew claimed that Weitz’s communication with Bliss was the product of “a vendetta” against him, the goal of which was “to destroy his reputation and tennis career.” But the Court found that narrative fanciful. The extensive submissions provided to Supreme Court in connection with the summary judgment motion and cross motion made clear that no factfinder could reasonably conclude that Weitz was not motivated, at least in substantial part, by legitimate concerns for her son’s emotional well-being and physical safety. On that point, the Court emphasized that the central concerns articulated in Weitz’s email—about bullying and poor sportsmanship—were not alleged to be defamatory. And it cannot be said that, by including the information about Robbie Wagner TA and Sportime, Weitz went beyond what was necessary to convey that central message. In fact, on other issues discussed in the email, Weitz was circumspect, notably choosing not to repeat the extremely offensive names that Matthew had called Daniel or to mention bullying incidents of which she was aware involving Matthew and other children.
Nor was there a triable issue of fact as to actual malice—that is, whether Weitz made the supposedly defamatory statements with a high degree of awareness of their probable falsity. When it comes to demonstrating actual malice, “there is a critical difference between not knowing whether something is true and being highly aware that it is probably false.”
In evaluating whether Weitz would have been highly aware that her statement that Matthew had been thrown out of Sportime was probably false, it sufficed to note that Kossoff confirmed to Bliss, just days after she emailed Bliss, that the statement was accurate. He wrote that “[Matthew] was a major problem for us,” “we no longer allow him to play at our facility,” and “[h]is behavior was [some] of the worst we have ever seen.” And, of course, Weitz had suggested that Bliss reach out to Kossoff “to discuss” Matthew’s situation with Sportime—which would have been a strange thing for her to do if she believed the information she was conveying was false.
It was true, as Matthew argued, that Kossoff attempted to walk back those statements during his deposition several years after the fact. But Kossoff’s backpedaling did not raise a triable issue of fact as to whether Weitz was highly aware of the alleged falsity of her statement at the time it was made, particularly given other evidence in the record, aside from Kossoff’s email, that Matthew had, in fact, been asked to leave Sportime and that Sportime and the Porges family had mutually agreed, when they “parted ways,” “not [to] defame each other.” In other words, according to Sportime’s general manager, “Sportime would not talk poorly about [Matthew] and [Matthew] would not speak badly about Sportime.”
Wagner’s response to Bliss’s inquiry about Matthew’s behavior was more measured than Kossoff’s. He informed Bliss that there were “[n]o real problems” with Matthew. But he also admitted that Matthew’s former coach “would not teach him anymore,” and consequently, the Porges family had “left” the program. Wagner went on to say that, although Matthew was “back” taking private lessons, he was not “allowed to participate in drill programs at RWTT.”
Certainly a person with knowledge of those facts could fairly conclude that Matthew had been asked to leave the Robbie Wagner program, at least for some period of time. After all, Matthew’s coach had apparently decided not to work with him anymore. And Matthew was not permitted to enroll in drill programs—a decision that, one could reasonably infer, reflected a desire on the part of Robbie Wagner TA to minimize his interactions with other children. Moreover, Weitz stated at her deposition that another parent had told her that Matthew had been thrown out of that program. Given all of that, the worst that can be said is that Weitz did not know for sure whether Matthew had been removed from Robbie Wagner TA. But uncertainty about the accuracy of information was not enough to establish malice.
Weitz’s motion for summary judgment dismissing the complaint was granted. And the denial of Matthew’s cross-motion for summary judgment on the complaint was affirmed.