Misidentified Person Loses Defamation Claim Against Tabloid–Bloom v. A360

Elon Musk “secretly” fathered twins with his subordinate Shivon Zilis. When the news came to light, it triggered a “tabloid feeding frenzy.” US Weekly published two articles on the story and posted to Instagram. Unfortunately, the photo US Weekly used wasn’t of Zilis, it was of the plaintiff Amanda Bloom, a former roommate of Zilis. Upon notification, US Weekly acknowledged the error and replaced the photo within 24-48 hours. But allegedly, the photo still shows up on syndicated sites. The court dismisses Bloom’s lawsuit against US Weekly.

Defamation. The case involves a matter of public concern, so the parties agreed that the plaintiff had to show actual malice. The plaintiff alleged that the US Weekly editors had seen photos of Zilis, which are easy to find. Instead, US Weekly pulled a photo from Zilis’ tweetstream, and the tweet in question “was a reply to plaintiff and tagged [plaintiff] and another individual in the tweet” (cleaned up). The source tweet:

In the plaintiff’s view, these technological affordances should have tipped off the US Weekly editors of the misidentification (or at least the need to do more homework).

The court says these allegations aren’t enough to satisfy the actual malice standard. First, the plaintiff didn’t connect this lack of diligence to the article’s author. But even if the plaintiff connected the dots,

With respect to defendant’s possession of contrary information, the amended complaint has, at best, plausibly alleged that defendant did not know if the photograph was of Zilis and failed to verify the accuracy of the photograph, despite knowing what Zilis looked like. But that is insufficient to raise an inference of actual malice, as all that those allegations plausibly suggest is a negligent failure to uncover the truth rather than a subjective awareness of falsity

Nor can defendant’s alleged failure to investigate whether the photograph was of Zilis save plaintiff’s claim from dismissal. That is because it is well-established that in general a failure to investigate in and of itself is insufficient to show actual malice…there are no allegations defendant purposefully avoided finding out the truth about the photograph…

plaintiff alleges that defendant had an economic motive to use the photograph of plaintiff, instead of Zilis, because it differentiated defendant’s articles from those of other publications. But a desire to turn a profit does not in and of itself indicate a defendant acted with actual malice…

plaintiff’s theory that defendant chose the photograph of plaintiff for its commercial appeal defies reason. For it makes absolutely no sense that defendant would knowingly use a photograph of a completely different person who is not famous to make articles about a person who is famous stand out, as using an incorrect photograph of an unknown individual likely would have the opposite effect

The publicity rights claim similarly falls. The court says that the plaintiff must establish actual malice to overcome the newsworthiness exception to publicity rights (using an analogy to anti-SLAPP law), which she didn’t do.

* * *

Ugh, a rough ruling for the plaintiff. She got casually and undeservedly ensnared in the Musk vortex, had her life disrupted by shoddy journalism, and gets nothing in return. On the other hand, although the mistake was avoidable, US Weekly’s prompt correction of its mistake may have blunted the impact. Indeed, some people may have chosen not to sue after such a prompt correction.

This ruling made me wonder about the application of actual malice to content produced by generative AI. If a defamation lawsuit is subject to the actual malice requirement (i.e., because the topic has the requisite degree of public interest), then I don’t see how plaintiffs can show that generative AI had it–at least by this court’s standards.

Case Citation: Bloom v. A360 Media LLC, 2024 WL 2812905 (S.D.N.Y. June 3, 2024). The amended complaint.