By Celia Ampel, From Daily Business Review

Just because it’s on Page Six doesn’t mean it’s not defamatory, according to the U.S. Court of Appeals for the Eleventh Circuit.

The appellate court Monday revived a defamation lawsuit against the New York Post for an item in its Page Six gossip column, finding reasonable readers might take the story as true.

“While it is surely true that a reader would not expect to encounter the type of hard-hitting investigative journalism that might appear on the front page of the New York Times or the Washington Post, the mere placement of a story in a particular section of the paper is not enough to categorically preclude it from a defamation action,” Circuit Judge Stanley Marcus wrote in the ruling.

The case was filed by Pras Michel, a founding member of The Fugees hip-hop group, which also included Lauryn Hill and Wyclef Jean. Michel sued the New York Post and two of its reporters after it published an October 2014 story saying Michel was a no-show at a Sept. 11 charity event for “his own” foundation.

The article also said the foundation bounced a check to the venue, falsely claimed MTV sponsored the event and failed to register the charity with state officials, according to the November 2014 complaint.

Michel, who now lives in Broward County and focuses on philanthropic efforts in Haiti, denied the article’s assertion that he was associated with the Hope for Them Foundation, he had committed to perform or the event had anything to do with the 9/11 anniversary.

U.S. District Judge James Cohn in Fort Lauderdale dismissed the lawsuit under New York law, finding the tone and placement of the article suggested it was founded on opinion.

“The New York Post’s Page Six traffics in celebrity gossip,” Cohn wrote. “Its reputation is well-known.”

Michel hired Boies, Schiller & Flexner to handle the appeal. His attorneys argued the court should reconsider New York’s three-part test for whether a statement is fact or opinion. The test asks whether the language used has a precise, readily understood meaning; whether the statements can be proven true or false; and whether the context of the communication signals to readers that the piece is likely to be opinion, not fact.

New York courts have ruled that even statements on the opinion page of the New York Times were not automatically shielded from defamation claims, the attorneys argued.

“There certainly were some cases that supported our position that no matter where the statements appear in the newspaper, you still have to go through the analysis and figure out whether they’re capable of being proved true or false and how a reasonable reader would evaluate them,” said Michel’s attorney, Eli Glasser in Fort Lauderdale.

Judges Marcus, Adalberto Jordan and Susan Black found the language in the article, such as the statements that Michel “bailed on” the event and it involved “his own” foundation, could be readily understood and proven true or false.

But the judges still believed the complaint as written should be dismissed because it did not allege adequate facts to show the Post or its reporters acted with actual malice. Because Michel is a public figure, he cannot win his defamation case without showing the Post knew its story was false or published it with reckless disregard for the truth.

The court reversed Cohn’s decision and remanded it with instructions that Michel be allowed to amend his complaint.

“We feel that this was an important issue under New York law in the defamation context,” Glasser said. “If the Eleventh Circuit would have accepted the defendants’ arguments, there would have almost been a presumption of immunity for Page Six and other gossip columns. So we’re very happy with the result.”

Along with Glasser, Michael Gottlieb and Greg Dubinksy of Boies Schiller in Washington represented Michel.

Davis Wright Tremaine attorneys Constance Pendleton and Laura Handman in Washington and Yonatan Berkovits in New York and Dana McElroy of Thomas & LoCicero in Fort Lauderdale represented the Post and reporters Isabel Vincent and Melissa Klein.

Pendleton did not respond to a request for comment by deadline.

IMAGE: Eli Glasser from Boies Schiller & Flexner handout

For more on this story go to: http://www.dailybusinessreview.com/id=1202751671634/Fugees-Star-Gets-DoOver-in-Defamation-Case-Against-New-York-Post-About-Page-Six#ixzz42PXwwqbA