Triangle Publications, Inc. v. Chumley

• Decision Date: 02 July 1984
• Docket Number: No. 40662,40662
• Citation: 253 Ga. 179,317 S.E.2d 534
• Parties: , 10 Media L. Rep. 2076 TRIANGLE PUBLICATIONS, INC., et al. v. CHUMLEY, b/n/f.
• Court: Georgia Supreme Court

Page 534

317 S.E.2d 534

253 Ga. 179, 10 Media L. Rep. 2076

TRIANGLE PUBLICATIONS, INC., et al. v. CHUMLEY, b/n/f.

No. 40662.

Supreme Court of Georgia.

July 2, 1984.

Rehearing Denied July 18, 1984.

Frank Love, Jr., James C. Rawls, V. Robert Denham, Jr., Powell, Goldstein, Frazer & Murphy, Atlanta, for Triangle Publications, Inc., et al.

Morgan M. Robertson, Adkins & Robertson, Marietta, for Libby Sue Chumley.

SMITH, Justice.

In April 1982 TV Guide Magazine, a weekly publication owned by appellant Triangle Publications, Inc. (Triangle), and the Atlanta Constitution and Atlanta Journal newspapers, owned by appellant Cox Enterprises, Inc. (Cox), printed an advertisement for an upcoming television documentary series on the topic of teenage pregnancies. The advertisement was prepared and submitted for publication by WXIA-TV of Atlanta as a promotion for a special feature of 11 Alive News. ¹ The heading of the advertisement, in large, bold letters, reads: "GUESS WHAT LORI FOUND OUT TODAY." The middle portion of the advertisement is a photograph of a diary, lying open on a desktop, and containing the following handwritten entry: "Dear Diary: I found out today that I'm pregnant. What will I do now?" Directly below this diary page is a photograph of a teenaged girl embracing a young man. The bottom one-quarter of the advertisement gives the reader details concerning the upcoming series on teenage pregnancies.

Appellee Libby Sue Chumley filed a complaint alleging that she was the girl pictured in the advertisement and that neither she nor anyone acting in her behalf had authorized use of her picture. She sued appellants for libel and invasion of privacy, claiming that the ad referred to her and implied that she was pregnant. She asserts that she is not and has never been pregnant, nor has she engaged in sexual relations, either with the young man in the photograph or anyone else.

Appellants answered and defended on the grounds that they had made no defamatory statements regarding Chumley; that any such statements were made without malice; that the statements were made in the exercise of due care, as appellants had no duty to verify the accuracy or content of advertisements submitted to them for publication; and that the advertisement concerned a newsworthy topic of public interest, and was protected by the free speech provisions of the federal and state constitutions. Following discovery, Triangle and Cox moved for summary judgment. Citing Cabaniss v. Hipsley, 114 Ga.App. 367, 381, 151 S.E.2d 496 (1966), the trial court granted the motion as to the invasion of privacy count of Chumley's claim. ² As to the libel count, the judge entered detailed findings of fact and conclusions of law, ruling that appellants could constitutionally be held liable for failure to "exercise ordinary care and caution which every prudent and thoughtful publisher should exercise under the same or similar circumstances ..." Triangle and Cox applied to this court for interlocutory review of the order, which was granted. This appeal followed.

1. The main issue on appeal is one of first impression in Georgia: Under what standard of care may a publisher who defames a private figure plaintiff constitutionally be held liable in tort? We agree with the trial court that the applicable standard is ordinary care.

The Code defines libel as "a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1(a) (Code Ann. § 105-701). At common law libel was a strict liability tort--that is, it was no defense to a libel action that the publisher acted reasonably or innocently. See Prosser, Handbook of the Law of Torts 771 (4th ed. 1971). However, in 1974 the United States Supreme Court decided Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. This approach ... recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation." Id. at 347-48, 94 S.Ct. at 3010-11.

In the decade since Gertz was decided, an overwhelming majority of the state courts which have addressed the question have held that a private figure plaintiff may recover for defamation on a showing of negligence on the part of the speaker or writer. A total of 21 states have adopted an ordinary care standard, while only four states follow the "actual malice" approach urged by appellants. ³ We agree with the majority view that a negligence standard for private figure plaintiffs best preserves the balance between free speech interests and protection of the individual's reputation. See Restatement 2d of Torts § 580(b) (1972). As the court in Gertz noted, the states have a strong interest in preserving effective suits for defamation on behalf of injured citizens, as private figures characteristically have less effective opportunities for rebuttal than do public officials. 418 U.S. at 344, 94 S.Ct. at 3009. In addition, the "actual malice" standard has been criticized as conducive to lax investigative procedures and factual errors by the press. See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977); Comment, Defamation and State Constitutions: The Search for a State Law Based Standard After Gertz, 19 Willamette L.Rev. 665, 672-3 (1983).

At trial of the negligence issue, the standard of conduct required of appellants will be defined by reference to the procedures a reasonable publisher in appellants' position would have employed prior to publishing an advertisement such as this one. Appellants will be held to the skill and experience normally exercised by members of their profession....