Plaintiff Unable to Prove Actual Malice—Summary Judgment to Defendant

In determining a libel complaint brought by the Humane Society of the United States (HSUS) against defendants based upon an ad defendants placed in the New York Times which was captioned “Why is [HSUS] Helping a Terrorist Group Raise Money?” should have been dismissed, the First Department wrote:

The court should have dismissed the amended complaint as against all of the defendants. Contrary to plaintiff’s contention, it is a public figure…. It thrust itself to the forefront of the public controversy on animal cruelty and sought to influence public action on this issue. Accordingly, as a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel….

“[A] libel defendant’s burden in support of summary judgment is not . . . to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence” …. Here, defendants were entitled to summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice (i.e., that defendants “entertained serious doubts as to the truth of [its] publication or acted with a high degree of awareness of . . . probable falsity . . . at the time of publication”) by clear and convincing evidence…. Humane League of Phila Inc v Berman & Co, 2013 NY Slip Op 04989, 1st Dept 7-2-13