MiGi, Inc. v. Gannett Massachusetts Broadcasters, Inc.

• Decision Date: 19 February 1988
• Docket Number: No. 87-154,87-154
• Citation: 25 Mass.App.Ct. 394,519 N.E.2d 283
• Parties: , 15 Media L. Rep. 1557 MIGI, INC., et al. 1 v. GANNETT MASSACHUSETTS BROADCASTERS, INC.
• Court: Appeals Court of Massachusetts

Page 283

519 N.E.2d 283

25 Mass.App.Ct. 394, 15 Media L. Rep. 1557

MIGI, INC., et al. ¹ v. GANNETT MASSACHUSETTS BROADCASTERS, INC.

No. 87-154.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 14, 1988.

Decided Feb. 19, 1988.

Floyd H. Anderson, Jr., Boston, for plaintiffs.

James J. Dillon, Boston (Gordon M. Jones, III, Arlington, with him) for defendant.

Before ARMSTRONG, KAPLAN and WARNER, JJ.

KAPLAN, Judge.

On December 13, 1984, during the pre-Christmas shopping season, the Department of Public Health (DPH), in association with the State Fire Marshal's office of the Department of Public Safety, put out a statement, in the form of a press release, that DPH was "in the process of ordering off sale all stuffed toys that do not have labels, or those which have strong petroleum-like odors." Particularly under scrutiny were "look-alike" dolls imitative of the line of "Cabbage Patch" dolls that had achieved sweeping popularity at the time. Following up on the release, Ann Dufresne, a news reporter for Boston television Channel 56, interviewed the deputy director of the State Laboratory Institute, DPH; the director and deputy director of the Food and Drug Division, DPH; and an employee of a Boston convenience store. Dufresne went on the air on the 10:00 P.M. program ² and broadcast a news story of which the essence was: "They may be cute and cuddly but if they don't carry a manufacturer's label or they smell like kerosene, you probably won't be buying them for your kids this Christmas. After testing several imitation and look-alike Cabbage Patch dolls, state officials are now ordering Massachusetts retailers to pull them off the shelves." Visible on the screen for some moments during the brief broadcast was a cuddly doll. It was a "Smudget" doll. ³ Although Dufresne had learned through the interviews that Smudget was one of the numerous dolls under investigation by State health officials, she did not mention Smudget by name, did not know that the doll exhibited was a Smudget, and was ignorant of the identity of the plaintiffs. ⁴ By the time of the broadcast, a sizable number of Smudget dolls in retail hands in Massachusetts had been tagged off-sale for noncompliance with the DPH labelling regulations; the dolls, however, were not malodorous.

In due time, MiGi, Inc., the manufacturer in New Hampshire of Smudget dolls, commenced the present action against Gannett Massachusetts Broadcasters, Inc. (Gannett), owner and operator of Channel 56, making the claim (among others) that the broadcast was a libel upon it and demanding damages of $10 million. Mogauro Shepherd Associates, Inc. (Mogauro), MiGi's sales representative for New England, was permitted to intervene as a party plaintiff with a claim for $5 million.

Upon papers, which in various details amplify the foregoing account, the defendant Gannett secured summary judgment dismissing the complaints, and the plaintiffs appeal. ⁵

The plaintiffs chose to press the action as one for defamation rather than for "disparagement" of the quality of goods, sometimes called "trade libel": for the distinction, see Boynton v. Shaw Stocking Co., 146 Mass. 219, 221, 15 N.E. 507 (1888); Restatement (Second) of Torts § 626 comment b, § 629 comment e (1976). In that view, there might be doubt whether any observers of the broadcast would connect the alleged defamation with the plaintiff MiGi, and greater doubt whether they would connect it with the plaintiff Mogauro; to be actionable, defamatory matter must of course be shown in some objective sense to be "of and concerning" the complainant. See Restatement, supra, § 613; New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 N.E.2d 1005 (1985). Whether Mogauro's claim was too remotely derivative from any that MiGi could assert would present itself as a cognate problem. Cf. Merrill v. Post Publishing Co., 197 Mass. 185, 83 N.E. 419 (1908); Kesner v. Liberty Bank & Trust Co., 7 Mass.App.Ct. 934, 390 N.E.2d 259 (1979). These issues, however, may be bypassed.

The broadcast, putting aside the showing of a Smudget, was privileged as a fair and accurate report of governmental action (companion to the privilege to report judicial proceedings). See Restatement, supra, § 611 comment d; Ingenere v. American Broadcasting Cos., 11 Media L.R. 1227, 1228 (D.Mass.1984). Cf. Sibley v. Holyoke Transcript-Telegram Publishing Co., 391 Mass. 468, 470-472, 461 N.E.2d 823 (1984). To be "fair and accurate" for the purpose, the report herein need not have duplicated or tracked the official statement; enough that it gave a rough-and-ready summary that was substantially correct. See Ricci v. Venture Magazine, Inc., 574 F.Supp. 1563, 1567 ( Such a privilege would not be lost if the substance of the official statement, and hence of the report, was false; indeed, according to an emergent rule, the privilege should not be forfeited even if the party making the report knew the statement to be false. See Restatement, supra, § 611 comment a; Prosser & Keeton, The Law of Torts § 115 at 836-838 (5th ed. 1984). But see 2 Harper, James & Gray, The Law of Torts § 5.24 at 208-210 (2d ed. 1986). It is often said that the benefits of this privilege are forgone where a complainant shows that the reporter was actuated by malice toward him. But "malice" would...