Spider-Man Far From ends, and Spider-Man No Way Home begins with, news broadcaster J. Jonah Jameson of the Daily Bugle playing a video that depicted Spider-Man ordering a drone attack in London, being responsible for Mysterio’s death, AND then revealed that Peter Parker is Spider-Man.
Peter needs a very good lawyer to sue the Daily Bugle and J. Jonah Jameson.
New York Defamation Law
Defamation is a “false statement about a person that ‘tends to expose the p[erson] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society,'” Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 411-12 (N.Y. App. Div. 2009), citing Rinaldi v Holt, Rinehart Winston, 42 NY2d 369, 379, cert denied 434 US 969; see Golub v Enquirer/Star Group, 89 NY2d 1074).
Defamation can be spoken (slander) or written (libel). Libel has two forms:
Libel per se: where the defamatory statement appears on the face of the communication; and
Libel per quod: where no defamatory statement is present on the face of the communication but a defamatory import arises through reference to facts extrinsic to the communication
Ava, at *411-12, referencing 2 NY PJI2d 3:23, at 197, 3:24, at 275; see also Hinsdale v Orange County Pubis., 17 NY2d 284; Cole Fisher Rogow, Inc. v Carl Ally, Inc., 29 AD2d 423, 426 [1968, Stevens, J.], affd 25 NY2d 943).
A statement is defamatory on its face if it “impute the commission of a serious crime . . . or if they affect the plaintiff in his trade, occupation, or profession…” Oluwo v. Hallum, 2007 N.Y. Slip Op. 51761 (N.Y. Sup. Ct. 2007), citing Sterling Doubleday Enterprises, L.P. v Marro, 238 AD2d 502, 503; Warlock Enterprises v City Center Assocs., 204 AD2d 438, 438.
New York law on libel per se rule on damages and news media organizations require that “damage may not be presumed in the absence of Times malice but must be proved,” which means that a plaintiff does not need to establish either actual malice or special damages before they may recover. Hogan v. Herald Company, 84 A.D.2d 470, 480-81 (N.Y. App. Div. 1982).
Accusing Peter Parker of Murder and Terrorist Attack
J. Jonah Jameson played an edited video from London that appeared to show Spider-Man ordering a drone attack with the command “execute them all.” The video purported to show Spider-Man being responsible for Mysterio’s death. The video was from an “anonymous” source. At no point in the video is Spider-Man’s face visible. Jameson states the video as “conclusive proof” that Spider-Man was responsible for the “murder of Mysterio.”
Jameson’s use of the video implies Spider-Man (and thus Peter Parker) committed two series crimes: a terrorist attack with drones and murder.
The claim that video was “conclusive proof” of Spider-Man committing murder is defamation, because it outright accused him of a crime. The video also imputes Spider-Man ordered a drone attack that could have had mass casualties.
If the Daily Bugle had any lawyers on staff, they should have paused before allowing an “anonymous” source to supply a video that clearly was edited. Publishing the video was reckless at best, intentional at worse.
The action of publishing the video can demonstrate it was done with “actual malice,” which is when a statement is made with “knowing its falsity or with reckless disregard for the truth.” Dykstra v. St. Martin’s Press LLC, 2020 N.Y. Slip Op. 31813, 9 (N.Y. Sup. Ct. 2020), citing Suozzi v Parente, 202 AD2d 94, 101-02 [1st Dept 1994] [internal citations omitted].
Reckless disregard for the truth is when there is a “high degree of awareness of . . . probable falsity[,]” Gertz v Robert Welch, Inc., 418 US 323, 332 [1974]). Alternatively, recklessness can mean the defendant “must have entertained serious doubts as to the truth of his publication.” Dykstra, at *9, citing Prozeralik v Capital Cities Communications, Inc., 82 NY2d 466, 474 (1993), citing Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 667 (1989). However, failing to conduct further investigation is not enough to establish actual malice; the issue is the subjective state of mind of the defendant. Dykstra, at *9, citing [citing St. Amant v Thompson, 390 US 727, 731-33 [1968]; Time, Inc. v Hill, 385 US 374, 387-88 [1967]; Herbert v Lando, 441 US 153, 170 [1979].)
Discovery would be important in establishing that J. Jonah Jameson acted with the reckless disregard for the truth or that he knew the video was not an actual depiction of events in London. Requests for production would focus on the source of the video, whether the video was edited by the anyone at the Daily Bugle, and discussions about airing the video. Moreover, the deposition of J. Jonah Jameson would be an opportunity to capture his vindictiveness towards Spider-Man on the record, which would go to showing his state of mind. Or simply make the jury hate him in a trial. On the flip side, if Jameson refused to participate in discovery, there is the possibility of securing a default judgment against the Daily Bugle as a sanction.
The Importance of Actual Malice
Actual malice is needed to successfully bring a defamation claim against a news publisher for public figures. Spider-Man arguably is a public figure, because he has “assumed roles of especial prominence in the affairs of society,” “occupy positions of . . . persuasive power and influence,” and have achieved “general fame or notoriety in the community.” Matthaus v. Hadjedj, 2018 N.Y. Slip Op. 30855, 6 (N.Y. Sup. Ct. 2018), citing Gertz v Robert Welch, Inc., supra at 345, 352; see Yiamouyiannis v Consumers Union of U.S., 619 F2d 932 (2 Cir. 1980).
Spider-Man took affirmative steps to “attract personal attention or striving to achieve a measure of public acclaim,” with his crime fighting and saving half of all life in the universe. See, Maule v. NYM Corp., 54 N.Y.2d 880 (N.Y. 1981). However, he took those affirmative steps as Spider-Man, not as Peter Parker.
Peter Parker as a Private Individual
The entire point of having a secret identify while being a superhero is so your family members do not get killed, stalkers do not follow their every steps, and they can have a “normal” life without bomb throwing super villains trying to kill them. The Daily Bugle deciding the secret identify of Spider-Man was of public interest raises serious privacy torts.
The issue of whether Spider-Man was involved in a terrorist attack and murder arguably is one of public concern (provided there is no actual malice). However, the fact Peter Parker’s identify was disclosed and alleged he committed murder thrust Peter into a fight with a news media corporation. Peter could recover for the damages he sustained from bricks being thrown through his window to attacks if he could show the Daily Bugle “acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” by a preponderance of the evidence. Chapadeau v. Utica Observer, 38 N.Y.2d 196, 199 (N.Y. 1975).
Did the Daily Bugle act in a “grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” by publishing an edited video that claimed a 17 year old was a murderer? I think a jury would agree.
