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Published online by Cambridge University Press: 27 February 2017
In 1985 two intelligence agencies of the South Korean Government announced that they had successfully disrupted a North Korean spy ring operating in the United States. Their press release, which was widely publicized in the Korean press, named Chang-Sin Lee as a North Korean agent associated with a spy ring at Western Illinois University, where Lee had been a student. The story was picked up and reported in the United States by six Korean-American newspapers and a public television station. When Lee sued for libel, the defendants relied upon the official report privilege, which gives absolute protection to the accurate republication of official government reports. The district court, holding that the privilege applied and that Lee had not overcome it by showing malice, dismissed the case. Plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, which in a two to one decision reversed (per Ervin, J.) and held: that the official report privilege does not apply to the republication of official reports of foreign governments. Judge Kaufman, sitting by designation, dissented from the majority’s reversal of the district court’s grant of summary judgment.
1 See, e.g., Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981); Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985), cert, denied, 476 U.S. 1141 (1986); see also Restatement (Second) of Torts §611 (1977).
2 See 849 F.2d 876, 878, and cases cited therein.
3 Id. (citing Medico, 643 F.2d at 140–42).
4 Id. at 879.
5 Id.
6 Id.
7 See New York Times v. Sullivan, 376 U.S. 254 (1964).
8 849 F.2d at 880–86.
9 Id. at 881–82 (citing Webb v. Times Publishing Co., Ltd., [1960] 2 Q.B. 535).
10 Id. at 884. Judge Kaufman considered the proper attribution of information to its government source to be vital, arguing that such attribution would reduce the risk of incidental defamation. Id. at 885 (citing Dameron, 779 F.2d at 740). Observing that there was ambiguity in the record as to whether some of the defendants had adequately disclosed the source of the report about the plaintiff, he indicated that he would have remanded the case for further proceedings on that issue. Id. at 885–86.
11 See id. at 882 (Kaufman, J., dissenting).
12 The majority felt that the dissent placed “too much emphasis on the public’s right to know and the importance of the defamatory information” and gave too little weight to “the State’s interest in compensating private individuals for injury to their reputation.” Id. at 879.
13 See L. Tribe, American Constitutional Law §§12–2, 12–8 (2d ed. 1988).
14 Gertz v. Robert Welch, Inc., 418 U.S. 323, 346 (1974); see also Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 78–81 (1971) (Marshall, J., dissenting). The Supreme Court has, in fact, adopted a “public interest” standard in other contexts, but that standard has been much criticized and its future application is uncertain. See L. Tribe, supra note 13, §12–13.
15 849 F.2d at 879, 880; see Gertz, 418 U.S. at 347 (liability for defamation may not be imposed without fault).