Page v. Oath Inc.
| Decision Date | 19 January 2022 |
| Docket Number | 79, 2021 |
| Citation | 270 A.3d 833 |
| Parties | Carter PAGE, Plaintiff Below, Appellant, v. OATH INC., Defendant Below, Appellee. |
| Court | Supreme Court of Delaware |
Sean J. Bellew, Esquire, BELLEW LLC, Wilmington, Delaware, Todd V. McMurtry, Esquire (argued), HEMMER DEFRANK WESSELS, PLLC, Ft. Mitchell, Kentucky, and K. Lawson Pedigo, Esquire, MILLER KEFFER & PEDIGO, PLLC, Dallas, Texas, for Plaintiff Below, Appellant Carter Page.
T. Brad Davey, Esquire, Jonathan A. Choa, Esquire, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware, Elbert Lin, Esquire, David M. Parker, Esquire (argued), HUNTON ANDREWS KURTH LLP, Richmond, Virginia, and Jonathan D. Reichman, Esquire, Jennifer L. Bloom, Esquire, HUNTON ANDREWS KURTH LLP, New York, New York, for Defendant Below, Appellee Oath Inc.
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices, constituting this Court en Banc.
Dr. Carter Page, a public figure with ties to President Trump's 2016 campaign, claimed that Oath Inc.’s online news organizations published eleven defamatory articles about him in 2016 and 2017. Michael Isikoff authored a Yahoo! News article that forms the backbone of the amended complaint (the "Isikoff Article"). Three other articles were written by employees at TheHuffingtonPost.com ("HuffPost") and refer to the Isikoff Article (the "Employee Articles"). The remaining seven articles were written by HuffPost non-employee "contributors" (the "Contributor Articles"). The articles discuss an "intelligence report" from a "well-placed Western intelligence source" with information that Page met with senior Russian officials and discussed potential benefits to Russia if Donald Trump won the presidential election.
The Superior Court granted Oath's motion to dismiss. It found that the Isikoff Articles and Employee Articles were either true or substantially true; Page was at least a limited purpose public figure, meaning he was required to plead actual malice by the individuals responsible for publication, and he failed to meet that standard; the fair report privilege for government proceedings applied; and Oath was protected for the Contributor Articles under the federal Communications Decency Act. Page appeals the Superior Court's judgment except the Superior Court's ruling that the Employee Articles were true.
We affirm the Superior Court's judgment. The Isikoff Article describes a federal investigation into a report about Page—an investigation that existed and was being pursued by the FBI. At a minimum, the article is substantially true, and as such, Page did not state a claim for defamation based on that article. Page also fails to state a claim for defamation with respect to the remaining articles. At oral argument, Page conceded that if the Isikoff Article is not defamatory, he loses on his remaining claims. Page also failed to allege that the individuals responsible for publication of those articles acted with actual malice. Finally, Page does not contest the Superior Court's holding that the Employee Articles were true. Because these grounds dispose of Page's defamation claims, we do not address any of the Superior Court's other grounds for dismissal.
According to the well-pleaded allegations of the amended complaint, which we accept as true for purposes of this appeal, and the documents referred to and relied on in the amended complaint, Dr. Carter Page is an energy consultant who developed contacts in Russia through his work in investment banking.1 This led him to the attention of former President Donald Trump's campaign. He was brought on as an advisor for Russian affairs in 2016. After this appointment, he was first named a Trump advisor in March, and then gave at least one extensive interview with a news organization.
Oath Inc. is a technology company that owned several news publications including Yahoo! News and HuffPost. In September 2016, Michael Isikoff published an article about Page in Yahoo! News.2 The article is entitled "U.S. intel officials probe ties between Trump adviser and Kremlin."3 It begins by stating that "U.S. intelligence officials are seeking to determine whether [Page] has opened up private communications with senior Russian officials ... according to multiple sources who have been briefed on the issue."4 Those sources include "a congressional source" and a "senior U.S. law enforcement official."5 The article also discusses briefings with "senior members of Congress"—some of whom are named and directly quoted—about Page and Russian efforts to undermine the 2016 election, and how those who were briefed reacted to the information.6 It then details Page's "extensive business interests" in Russia, as well as statements that were critical of U.S. policy he made both years prior and just before he was brought on as an adviser to the Trump campaign.7
The Isikoff Article also describes specific "intelligence reports" received by U.S. intelligence agencies that discuss Page's supposed meetings with high-ranking Russian businessmen and officials with close ties to Vladimir Putin.8 In the Isikoff Article, the information regarding the report and the receipt of the report by intelligence agencies is credited to "a well-placed Western intelligence source."9 The article also quotes the congressional source as saying that the "intelligence reports [about Page's ties] ... were being ‘actively monitored and investigated[,]’ " and said that a "senior U.S. law enforcement official did not dispute that characterization[.]"10 The Isikoff Article does not state that Page met with the individuals named in the report. Instead, the article states that U.S. officials and U.S. intelligence agencies have received reports that Page met with the Russian businessman and officials.11 The article also states the meetings have not been confirmed.12
As we now know, Christopher Steele, a former intelligence operative for British Secret Intelligence MI6 and Confidential Human Source for the FBI, created the report. At the time, Steele was running his own private intelligence firm. Steele was hired to investigate then-nominee Trump's ties with Russia. He created a report that included information about Page (the "Steele Dossier" or the "Dossier"). After compiling this information, Steele delivered the Dossier to FBI agents with whom he had a previous relationship as a source.13 He then told Isikoff that he had delivered the report to the FBI and described the contents of the Steele Dossier.14 Steele's identity was later released to the public and investigated by the FBI along with the contents of the Dossier.15
Before the Steele Dossier surfaced, in July 2016, the FBI had opened an investigation "into whether individuals associated with the Donald J. Trump for President Campaign were coordinating, wittingly or unwittingly, with the Russian government's efforts to interfere in the 2016 U.S. presidential election."16 The FBI opened the investigation, known as Crossfire Hurricane, in response to "information from a Friendly Foreign Government (FFG) reporting that ... ‘the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama).’ "17 A month into this investigation, the FBI opened an individual file on Page and began investigating him directly.18 Shortly thereafter, the intelligence team considered applying for wiretap authorization under the Foreign Intelligence Surveillance Act ("FISA") to monitor Page, but instead decided it needed more evidence "to support probable cause that Page was an agent of a foreign power."19
On September 19, 2016, the Crossfire Hurricane team received the first information from the Steele Dossier and began investigating its claims.20 The Isikoff Article was then published on September 23, 2016.21 On October 21, 2016, the FBI filed for and was granted a FISA warrant on Page, and later renewed that warrant three additional times, resulting in eleven months of coverage.22 While the Steele Dossier "played a central and essential role" in the FBI's decision to seek the FISA warrant, the application for the warrant also cited the Isikoff Article and other information about Page the FBI had gathered.23
The details of the Isikoff Article and references to the investigation into Page were reported in ten other articles published on Oath subsidiary sites.24 The Employee Articles were written by Oath employees at its subsidiary HuffPost. The Contributor Articles were written by "contributors" to HuffPost—unpaid individuals not employed by Oath who were apparently free to post on the website without editorial supervision or prior approval.25 The authors of these articles were labeled "Contributor" in their bylines, but the presentation of the articles was otherwise substantially similar to those written by employees.26 Some of these articles refer to "Yahoo!’s reporting" and Page's involvement with the Senate intelligence committee.27
In 2017, Page sued Oath in the United States District Court for the Southern District of New York. Page focused on online articles discussing the federal investigation of Page during Donald Trump's 2016 campaign, including the eleven articles in this case. He raised two claims for defamation and tortious interference under state law and a federal claim alleging international terrorism. Oath successfully moved to dismiss the federal terrorism count, which led to the dismissal of the state law claims on jurisdictional grounds. Relevant to this appeal, the court made several observations about the truth of the statements contained in the Isikoff Article:
The Article does not say that Plaintiff actually met with the two Russians, but rather that U.S. officials had received reports of such meetings. The substance and even headline of the Article express uncertainty about...
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