https://courthousenews.com/buzzfeed-apologizes-to-alleged-hacker-in-wake-of-libel-lawsuit/
Part 1- Summary of Issue
BuzzFeed’s decision to publish a dossier with unverified claims that a Russian tech guru executed cyber attacks on the Democratic party has resulted in a libel lawsuit brought on by plaintiff Aleksej Gubarev, whose name was released in BuzzFeed’s publication of the document. This dossier is said to have originated from a private source. BuzzFeed has since deleted the plaintiff’s name and apologized for releasing the man’s name but is standing by its decision to publish the document. The document in question contains substantiated reports that Gubarev and his company, XBT Holdings helped Russian intelligence agencies carry out cyber attacks on Democratic leadership. Supposedly compiled by a private firm as opposition research for the presidential race, the dossier contains a “slew of seemingly outlandish claims”, in addition to multiple sources attesting to Russian interference in the election. In regards to Gubarev, the document cites multiple dubious reports that his web hosting and development firms (XBT and Webzilla), “had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against Democratic Party Leadership”, reading “Entities linked to one Aleksei Gubarev were involved and he and another hacking expert, both recruited under duress by the FSB … we significant players in this operation. In its publication of the dossier BuzzFeed did include of a disclaimer of sorts prefacing the article by stating, “The allegations are unverified, and the report contains errors”. To date the lawsuit claims that BuzzFeed has not reached out to Gubarev for response on the cyber attack claims. Gubarev reports that since the publication of the defamatory material his reputation has been in “tatters”, claiming that his wife has been the victim of online harassment and that his family’s security has been compromised. Gubarev’s businesses have also suffered, reporting that they have sustained “harm to [their] previously unblemished reputations with their clients, lenders, vendors, and other”, alleging that “At least one lender has declined to do business with XBT and/or Webzilla based on the defamatory statements published by the Defendants”. Relevant to the case is whether Gubarev is considered to be a public figure out not, According to the lawsuit, Gubarev, who is married with three young children, “is not, in any way, shape, or form, a public figure”. Claiming that “outside of technology circles, he is not known at all”. This is a civil suit, the specific tort being defamation, categories of defamation including libel and
BuzzFeed’s decision to publish a dossier with unverified claims that a Russian tech guru executed cyber attacks on the Democratic party has resulted in a libel lawsuit brought on by plaintiff Aleksej Gubarev, whose name was released in BuzzFeed’s publication of the document. This dossier is said to have originated from a private source. BuzzFeed has since deleted the plaintiff’s name and apologized for releasing the man’s name but is standing by its decision to publish the document. The document in question contains substantiated reports that Gubarev and his company, XBT Holdings helped Russian intelligence agencies carry out cyber attacks on Democratic leadership. Supposedly compiled by a private firm as opposition research for the presidential race, the dossier contains a “slew of seemingly outlandish claims”, in addition to multiple sources attesting to Russian interference in the election. In regards to Gubarev, the document cites multiple dubious reports that his web hosting and development firms (XBT and Webzilla), “had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against Democratic Party Leadership”, reading “Entities linked to one Aleksei Gubarev were involved and he and another hacking expert, both recruited under duress by the FSB … we significant players in this operation. In its publication of the dossier BuzzFeed did include of a disclaimer of sorts prefacing the article by stating, “The allegations are unverified, and the report contains errors”. To date the lawsuit claims that BuzzFeed has not reached out to Gubarev for response on the cyber attack claims. Gubarev reports that since the publication of the defamatory material his reputation has been in “tatters”, claiming that his wife has been the victim of online harassment and that his family’s security has been compromised. Gubarev’s businesses have also suffered, reporting that they have sustained “harm to [their] previously unblemished reputations with their clients, lenders, vendors, and other”, alleging that “At least one lender has declined to do business with XBT and/or Webzilla based on the defamatory statements published by the Defendants”. Relevant to the case is whether Gubarev is considered to be a public figure out not, According to the lawsuit, Gubarev, who is married with three young children, “is not, in any way, shape, or form, a public figure”. Claiming that “outside of technology circles, he is not known at all”. This is a civil suit, the specific tort being defamation, categories of defamation including libel and
Part II - Legal Questions Raised
Gubarev status as a public figure or private citizen. Whether or not the Court deems Gubarev a public figure carries further implications as to how the case will proceed. Under the landmark Supreme Court ruling in New York Times v. Sullivan, libel plaintiffs deemed to be public figures are subject to a more difficult judicial standard, and typically have to prove “actual malice” on the part of a defendant. Actual malice referring to knowledge of a statement’s falsity, or reckless disregard for the truth. Some criteria to examine whether or not the plaintiff occupies a position of relor or apparent importance include whether or not the public cares of the plaintiff’s qualifications for, or performance in office, whether the plaintiff has access to media, and whether the plaintiff accepted risk of media criticism. While Gubarev is clearly not a public official, he may be found to be a limited purpose public figure. Limited purpose public figures while not household names become well known with regards to a particular issue. It is possible Gubarev may be found to be a limited purpose public figure within technology circles. If so the case would proceed so that Gubarev must prove actual malice, rather than negligence if he were to be found a private citizen. If the Court does find Gubarev to be a limited purpose public figure he will have to prove actual malice, which includes a knowledge of falsity and reckless disregard for the truth. Reckless disregard is shown by circumstantial evidence, building a wall of bricks.
Gubarev status as a public figure or private citizen. Whether or not the Court deems Gubarev a public figure carries further implications as to how the case will proceed. Under the landmark Supreme Court ruling in New York Times v. Sullivan, libel plaintiffs deemed to be public figures are subject to a more difficult judicial standard, and typically have to prove “actual malice” on the part of a defendant. Actual malice referring to knowledge of a statement’s falsity, or reckless disregard for the truth. Some criteria to examine whether or not the plaintiff occupies a position of relor or apparent importance include whether or not the public cares of the plaintiff’s qualifications for, or performance in office, whether the plaintiff has access to media, and whether the plaintiff accepted risk of media criticism. While Gubarev is clearly not a public official, he may be found to be a limited purpose public figure. Limited purpose public figures while not household names become well known with regards to a particular issue. It is possible Gubarev may be found to be a limited purpose public figure within technology circles. If so the case would proceed so that Gubarev must prove actual malice, rather than negligence if he were to be found a private citizen. If the Court does find Gubarev to be a limited purpose public figure he will have to prove actual malice, which includes a knowledge of falsity and reckless disregard for the truth. Reckless disregard is shown by circumstantial evidence, building a wall of bricks.
Part III - Relevant Doctrine/Precedent
In this section I’ll be going through the elements of the plaintiff’s case for libel. The first area being Publication, concerning whether the document in question has been seen/heard by a third party which understands. In this case it is assumed as it involves mass media. Identification concerns whether the story is of and concerning the plaintiff. Proving identification in court involves at least of person reasonably believing the material was of and concerning the plaintiff. Identification can occur even if the plaintiff is not named or id the defendant didn’t mean to identify the plaintiff. As the plaintiff is clearly named in the document and has suffered backlash from those believing the story to be of and concerning the plaintiff it is evident that identification has occurred. Defamation concern injury to reputation, focusing on what others think about the plaintiff. Proving defamation in court requires that a substantial and respectable minority of the community thinks less of the plaintiff, shuns the plaintiff, or shows hatred or contempt for the plaintiff. This can be prove if the plaintiff is hurt in her job or profession and or if the plaintiff is accused of a serious crime. It would seem that Gubarev meets both qualifications. As he reports injury in his occupation, stating that “at least one lender has declined to do business with XBT and/or Webzilla based on the defamatory statements published by the Defendants”. In addition to being accused of a cyber attack which may potentially be considered a felony. Proving fault is contingent upon whether or not Gubarev is considered a public figure. If so, in proving actual malice he must build a wall of bricks. One such brick may be BuzzFeed’s failure to reach out to Gubarev for comment prior to publishing the article, another may be censoring other’s names in the document but not Gubarev, another may be failure to do an independent investigation on the dossier. If Gubarev is found to be a private citizen he only need prove negligence. Proving falsity in Court concerns whether or not the community would think differently of the plaintiff if the story were completely accurate. In Gubarev’s case it would seem so, especially considering the backlash suffered already from people believing the story to be true. Damage may be found in the injury Gubarev’s business suffered from losing clients. Damages may be necessary to compensate for business lost.
Part IV - Conclusion
After going through the elements of the plaintiff’s case it would seem that Gubarev is fairly likely to succeed in his suit against BuzzFeed, as he can prove all of the requirements of a libel case. Additional information to be considered include that the dossier originated from a private source. Due to this BuzzFeed may have lost the fair privilege or neutral reporting privileges had the dossier been obtained from a court record or other public document. I’m curious as to how the Court will determine Gubarev’s status as a public or private figure. Would it be possible to categorize Gubarev as an involuntary public figure? One made public by the spotlight of this case? May an individual be considered an involuntary public figure within the scope of a case which made them so?
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