From Sackler v. ABC, Inc., decided Wednesday by N.Y. trial judge Franc Perry:
[This defamation] action is based on the defendants' mistaken use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin endemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. The defendant, NYP HOLDINGS, INC., publishes the "N.Y. Post" which is a daily publication that is available worldwide in hard copy and online editions….
Plaintiff alleges that the N.Y. Post used a photo of him instead of the David Sackler of Purdue Pharma in an online article about the Sackler family of Purdue Pharma published on May 12, 2019. Mr. Sackler notes that the photograph utilized by the Post he is holding a bottle of Trimwater, a beverage distributed by his company, Lifestyles Beverages, Inc. The Post's story also ran in its printed edition which featured the same photograph but had been cropped and did not show the beverage from the plaintiff's company. Mr. Sackler also alleges reputational harm when the NY. Post published a different picture of him again holding a bottle of Trimwater in a [different] online article entitled "Met to reject gifts from the Sacklers amid the fury over the opioid crisis." …
Mr. Sackler cites specific examples of reputational harm that occurred in California, Florida, New Jersey and New York due to the defendant's use of his photograph when reporting on the opioid crisis. Mr. Sackler also points to phone calls and a Facebook message received from people in Maryland, Michigan and Texas regarding the use of his image in articles reporting on the David Sackler of Purdue Pharma. In addition, Mr. Sackler alleges multiple incidents of harm and steps taken to avoid additional harm. For example, being asked in business meetings about the publications or needing to make restaurant reservations under a different name or changing his appearance to avoid being accosted or attacked and that such a fear was especially heightened when out with his family.
The question is whether the court should apply New York law, or the law of New Jersey, where Sackler resides. Under New York law that existed as of the time of the publication, private figure plaintiffs could recover demonstrated compensatory damages based on a finding of gross negligence. New Jersey, however, has long required a showing of "actual malice"—i.e., knowing or reckless falsehood—for all plaintiffs, so long as the statement was on a matter of public concern. (New York has recently joined New Jersey on this, by statute, but that statute has been held not to be retroactively applicable.) The First Amendment requirement in such situations is a showing of negligence, but states can impose higher requirements.
