Worldnet Software Co. v. Gannett Satellite Info. Network, Inc.

• Decision Date: 05 September 1997
• Docket Number: No. C-960869,C-960869
• Citation: 702 N.E.2d 149,122 Ohio App.3d 499
• Parties: , 25 Media L. Rep. 2331 WORLDNET SOFTWARE COMPANY et al., Appellants, v. GANNETT SATELLITE INFORMATION NETWORK, INC., d.b.a. The Cincinnati Enquirer, et al., Appellees.
• Court: Ohio Court of Appeals

Page 499

122 Ohio App.3d 499

702 N.E.2d 149, 25 Media L. Rep. 2331

WORLDNET SOFTWARE COMPANY et al., Appellants, v. GANNETT SATELLITE INFORMATION NETWORK, INC., d.b.a. The Cincinnati Enquirer, et al., Appellees.

No. C-960869.

Court of Appeals of Ohio,

First District, Hamilton County.

Decided Sept. 5, 1997.

Kimpel, Hyland, Weinkam & Goodson, Cincinnati, and William M. Gustavson, Cincinnati, for appellants.

Graydon, Head & Ritchey, and John C. Greiner, Cincinnati, for appellees Gannett Satellite Information Network, Inc., d.b.a. The Cincinnati Enquirer, and Charles Brewer.

Keating, Muething & Klekamp, P.L.L., Michael L. Scheier and James E. Burke, Cincinnati, for appellees Citicasters, Inc., Howard Ain, and WKRC-TV.

Frost & Jacobs, and Richard Goehler, Cincinnati, for appellees Better Business Bureau of Cincinnati, Ohio, and Better Business Bureau of South Florida, Inc.

SUNDERMANN, Judge.

Appellant Mark Hanson appeals the dismissal of his defamation claim against appellees. Appellant Worldnet Software Company ("Worldnet") appeals the dismissal of similar claims against appellees Gannett Satellite Information Network, Inc., d.b.a. The Cincinnati Enquirer, and Charles Brewer (collectively, "the Gannett appellees"), and Citicasters, Inc., Howard Ain, and WKRC-TV (collectively, "the Citicasters appellees"). Because we conclude that appellant Worldnet's assignment of error with respect to the Citicasters appellees is well taken, we reverse the judgment of the trial court with respect to Citicasters. We affirm the trial court with respect to the other claims.

Appellants filed a complaint in April 1996, seeking damages for defamation and libel against appellees. The complaint was based on a newspaper article in the Enquirer and a television report that appeared on WKRC-TV. The Better Business Bureau was made a defendant based on statements attributed to it in the television report. Appellees filed motions to dismiss. The trial court dismissed Hanson's claim against all the appellees. Further, Worldnet's claims against the Gannett appellees and the Citicasters appellees were dismissed pursuant to Civ.R. 12(B)(6). ¹

For this court to affirm the trial court's dismissal of the appellants' claims, "it must appear beyond doubt from the complaint that [appellants] can prove no set of facts entitling [them] to recovery." O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. Whether certain statements alleged to be defamatory are actionable is a question of law for the court. Yeager v. Local Union (1983), 6 Ohio St.3d 369, 372, 6 OBR 421, 423-424, 453 N.E.2d 666, 669. Further, whether the allegedly defamatory statements involve opinions or facts is also a question of law. Scott v. News-Herald (1986), 25 Ohio St.3d 243, 250, 25 OBR 302, 307-308, 496 N.E.2d 699, 705; Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 649 N.E.2d 182. Thus, the resolution of these issues is amenable to a Civ.R. 12(B)(6) motion. See id.

Our research of defamation actions has revealed factors which, as matters of law, are properly decided at this point in the case. First, for a statement to be actionable by a plaintiff, it must be shown that the allegedly defamatory statement was "of and concerning" the plaintiff. New York Times Co. v. Sullivan (1964), 376 U.S. 254, 267, 84 S.Ct. 710, 719, 11 L.Ed.2d 686, 698-699. See, also, Stow v. Coville (1994), 96 Ohio App.3d 70, 644 N.E.2d 673; Lambert v. Garlo (1985), 19 Ohio App.3d 295, 19 OBR 467, 484 N.E.2d 260. Second, the statement must be one of fact, rather than an opinion.

"When determining whether speech is protected opinion a court must consider the totality of the circumstances. Specifically, a court should consider: the specific language at issue, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared." Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 649 N.E.2d 182, syllabus.

Finally, if the plaintiff is a public figure, actual malice must be shown. New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789.

In the first assignment of error, appellant Mark Hanson asserts that the trial court erred in granting appellees' motions to dismiss Hanson's claim. The trial court granted the Civ.R. 12(B)(6) motions, concluding that the allegedly defamatory statements were not "of and concerning" Hanson. In neither the newspaper article nor the television broadcast was Hanson's name mentioned. However, Hanson argues that because there is no legal distinction between him and Worldnet, any allegedly defamatory statement made about Worldnet is also made about him as the operator of Worldnet. Hanson cites Poss v. Morris (Mar. 29, 1996), Ashtabula App. No. 94-A-0042, unreported, 1996 WL 200614, in which the Eleventh Appellate District recognized that a party conducting business under a "doing business as" ("d.b.a.") designation remains personally liable for the injuries caused by the company. Id. Hanson contends that this principle should apply in the converse, allowing him to recover for defamation of his business. We disagree. Hanson was not personally injured by statements made about Worldnet. None of the statements was "of and concerning" Hanson individually. Further, we note that any damages awarded to Worldnet would go to Hanson individually. The trial court correctly dismissed Hanson's claim against all of the appellees. Accordingly, the first assignment of error is overruled.

The second assignment of error is that the trial court erred in dismissing Worldnet's claims against the Gannett appellees and the Citicasters appellees. We will consider the claims against each group of appellees separately.

With respect to the Gannett appellees, appellant lists six allegedly defamatory statements made about appellant in an article by Brewer. ² First, because Worldnet is specifically mentioned by name, there is no question but that the portion of the column to which appellant refers is "of and concerning" appellant.

As to the second factor, the trial court concluded that the statements constituted protected opinion. We agree. With respect to the specific language used, the words "scam" and "scheme" are used repeatedly in the column. This court must determine "whether a reasonable reader would view the words used to be language that normally conveys information of a factual nature or hype or opinion; whether the language has a readily ascertainable meaning or is ambiguous." Vail, supra, 72 Ohio St.3d at 282, 649 N.E.2d at 186. While the words "scam" and "scheme" may be innocuous and hyperbole, at this point in the proceedings, we must "make all reasonable inferences in favor of the nonmoving party." Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. For purposes of a Civ.R. 12(B)(6) motion, we cannot conclude that the words were mere hyperbole.

Next, we will consider whether the statements made about Worldnet are verifiable. "Does the author imply that he has firsthand knowledge that substantiates the opinions he asserts?" Vail, supra, 72 Ohio St.3d at 283, 649 N.E.2d at 186. In the portion of the column dealing with Worldnet, Brewer wrote that Worldnet was "probably a scam." (Emphasis added.) Further, Brewer suggested that readers should contact the National Fraud Information Center. Such references and suggestions indicate that the statements of the writer were not implying "first-hand knowledge." Rather, he stated that he had received comments about Worldnet from readers, and that readers should contact the National Fraud Information Center for information.

Finally, the court must consider the general context of the statements and the broader context in which the statements appeared. As far as the general context of the statements, the statements made are subjective, opinionated statements about Worldnet. Further, upon examination of the column, it is apparent that the entire text, written under Brewer's by-line, is full of his opinions. Much of the column is written in the first person, suggesting editorializing rather than reporting. For instance, Brewer comments on his predecessor's ability to write about "surfing the Net." Also, nearly one-third of the article is about America Online as "probably a better route for computer novices to explore the Internet." Further, Brewer gives his e-mail address for readers' questions, comments, and suggestions. Thus, based on the totality of the circumstances, we conclude that the statements were couched in an article that was full of the writer's opinions. Accordingly, because the statements in the article were protected opinion, we conclude that the trial court correctly granted the Gannett appellees' motions to dismiss.

With respect to the claims against the Citicasters appellees, appellants listed seven allegedly defamatory statements made in a television broadcast by Howard Ain. ³ As to the first requirement, we conclude that four of the statements (a through c, and g in the complaint) are not "of and concerning" appellant. Rather, the statements are general cautions to viewers about doing business on the Internet. However, the remaining three comments (d through f) specifically refer to Worldnet and, therefore, meet the first requirement for actionability.

The next consideration is whether the remaining statements are opinions or facts. The specific language in statements d through f does not appear to be hyperbole. Further, with all inferences made in favor of Worldnet, the statements appear to be actionable. As to the second consideration in Vail, the three statements are stated as firsthand knowledge and are verifiable. Finally, in consideration of the general context of the statements and the broader context in which they appear, the...