A July 9, 2014 Tenth Circuit Court of Appeals decision makes it potentially easier for litigants to pursue defamation claims. In Brokers’ Choice of America, Inc. v. NBC Universal, Inc. the court decided that “the totality of circumstances must be considered when litigating a defamation claim.” Brokers’ Choice of America, Inc. v. NBC Universal, Inc., No. 11-1042 (10th Cir. July 9, 2014). Select objectionable and shocking phrases, regardless of the accuracy of the statements, cannot be considered out of context.
Tyrone Clark and his company, Brokers’ Choice of America, Inc. (collectively “Brokers’ Choice”), filed a lawsuit in the United States District Court for the District of Colorado against NBC Universal, Inc., its parent company, GE, and three NBC employees. The claim involved a Dateline episode titled “Tricks of the Trade,” which presented Mr. Clark as teaching unethical sales techniques to target and mislead older consumers. Brokers’ Choice claimed Dateline used select snippets from their 2-day training seminar out of context to depict them in a false and damaging light. To gain access to the seminar, which was reserved for licensed brokers, and to surreptitiously record with hidden cameras, the Dateline producers made a deal with Alabama officials interested in investigating fraudulent sales of annuities to seniors: the Dateline crew was supplied with false credentials in exchange for sharing the recovered information. Brokers’ Choice asserted claims including defamation and civil rights violations. NBC defended itself by claiming that each statement presented in the Dateline program was “substantially true”, and claimed protection under the Colorado Shield Law. The trial court agreed and dismissed all claims.
Brokers’ Choice appealed and argued that the entire, unedited seminar video would reveal that the select excerpts Dateline aired were misleading and defamatory. While affirming the lower court’s dismissal of the Fourth Amendment claim as well as the privacy and stigmatization claims, the court concluded that Brokers’ Choice had alleged enough facts to state a defamation claim. Rather than looking at whether the statements aired by Dateline were substantially true, the court decided that the trial court was required to determine whether the characterization of Brokers’ Choice was substantially true. The Tenth Circuit thus reversed the lower court’s dismissal of the defamation claim, and sent the case back to the trial court to allow a jury to compare the statements aired on Dateline with the entire seminar presentation. The success of the defamation claim will depend on whether the jury is, clearly and convincingly, left with a sense of false impression.
The Tenth Circuit’s decision confirms that, when analyzing defamation claims, it is important to take a broad approach. Regardless of the accuracy of objectionable words or phrases, the complete statement must be examined in context.