Triangle TV station defends ‘fair report privilege’ in NC Supreme Court case

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  • Triangle television station WTVD defends its reliance on a "fair report privilege" for protection against a lawsuit at the N.C. Supreme Court.
  • Plaintiff Wesley Walker is suing WTVD for reporting in 2019 that he assaulted an elderly patient while working as a certified nursing assistant at an assisted living facility. The story was based on false information from the Wake County Sheriff's Department.
  • Walker and WTVD disagree about whether an email from a sheriff's department staffer offers the TV station access to the fair report privilege.

Triangle television station WTVD defends its reliance on a “fair report privilege” to protect it against a lawsuit involving a false report from the Wake County Sheriff’s Department. The TV station filed a brief Wednesday with the N.C. Supreme Court.

The state’s highest court will decide whether plaintiff Wesley Walker can continue to pursue legal action against WTVD.

The station reported in August 2019 that Walker had hit an elderly patient in the face while working at his job as a certified nursing assistant at an assisted living facility. The report was based on an email WTVD had received from a sheriff’s department staff member.

The information was wrong. Walker’s stepfather had accused him of assault. The charge had nothing to do with Walker’s job.

Walker sued the sheriff’s office and WTVD in August 2020. An August 2022 ruling from the N.C. Court of Appeals allowed Walker to proceed with his lawsuit against the sheriff’s office. But the same court affirmed a lower court’s ruling favoring WTVD against Walker’s legal claims.

The Appeals Court cited the television’s protection from a fair report privilege.

“Walker argues that the fair report privilege does not apply because the information provided to the WTVD Defendants — regarding an arrest warrant charging Walker with assault — was communicated to the television station in an email sent by the Sheriff’s Department’s Public Information Officer from his email account. Walker, however, cites no case from any jurisdiction in which a court has denied the application of the fair report privilege solely because the news report at issue relied upon information that a government agency communicated through its official email account,” wrote WTVD’s attorneys.

“[T]he Court of Appeals’ holding affirming the application of the fair report privilege to the 15 August 2019 email is consistent with, and supported by (1) the substantial jurisprudence from state and federal courts analyzing and applying the fair report privilege, and (2) the long-established public policy behind that doctrine encouraging the news media to report to the public on the operations of, and communications from, our court system and our law enforcement agencies,” according to the brief.

The lawsuit focuses on one line in the TV news report about Walker’s assault charge: “The Sheriff’s office telling us the charge is related to his job.”

“The WTVD Defendants’ reporting of this statement, properly attributed to the Sheriff’s Department, is a precisely accurate report of the Sheriff’s Department’s inaccurate, official email communication to the WTVD Defendants,” the TV station’s lawyers wrote. “It is, therefore, as a matter of law, protected by the common law fair report privilege, and the Court of Appeals properly affirmed the trial court’s granting of the WTVD Defendants’ motion to dismiss.”

Walker’s brief in the case, filed in April, disputed WTVD’s reliance on a fair report privilege.

“WTVD has admitted that this story created the impression that Mr. Walker assaulted an elderly patient,” according to the brief. “As a result of this story, Mr. Walker was fired, and his reputation was impaired. He was forced to work at a pizza restaurant when he could not find
employment as a CNA.”

WTVD reporter Ed Crump sent an email on Aug. 15, 2019, to sheriff’s employee Eric Curry. “Just asking for a quick check to make sure this charge isn’t related to this guy’s job as [sic] Capital Nursing,” Crump wrote. “I’m guessing it’s domestic but if it’s related to a client from Capital Nursing I’m interested in more details.”

“Related to his employer,” Curry responded on the same day, according to court documents.

“This four-word email, which was not in an official report, was not in the arrest warrant, and was not published to the general public, was the only information provided to WTVD indicating that the criminal charge pertained to the Plaintiff’s employment,” wrote John Kirby, Walker’s lawyer.

A different WTVD employee contacted Walker’s employer, Capital Nursing. A staffer indicated that Capital Nursing had no patients matching the name of the alleged assault victim and that the alleged assault hadn’t taken place at the facility. No one contacted Walker, according to his brief.

With no other confirmation, the TV station aired the story.

“The Plaintiff actually saw this story when it aired live, and was around several other employees of Capital Nursing, who saw the same story. The Plaintiff was shocked and horrified at this story,” Kirby wrote. “As a direct result of this false broadcast, the Plaintiff lost his job with Capital Nursing. The Plaintiff has not been able to resume his career as a CNA.”

Walker challenges the Appeals Court’s decision.

“The Court of Appeals held that the ‘fair report privilege’ protected the news outlet, even though the facts contained in its report were false and defamatory, and even though the new story was not based on an official report,” Kirby wrote.

“The Fair Report Privilege does not apply to this case, and the Plaintiff’s case against WTVD should have been allowed to proceed,’ Kirby argued. “The opinion of the Court of Appeals expands the scope of the Fair Report Privilege from allowing the press to rely on an ‘official report,’ to allowing it to rely on a ‘flimsy email.’ This is not consistent with North Carolina law, is not consistent with the Restatement of Torts, and is not consistent with the modern trend of cases addressing this issue.”

“Mr. Curry’s four-word, one-on-one email to WTVD is not a report to which the fair report privilege applies,” Kirby added. “If WTVD had merely reported the contents of the Warrant for Arrest, or the contents of some other official report, then it may claim the fair report privilege. But the statement of Mr. Curry in an email, directed only to WTVD’s employee and not to the general public, which does not summarize some other official report, is not sufficient to invoke the fair report privilege.”

Walker will have a chance to respond to WTVD’s latest brief before the case proceeds at the state’s highest court. No date has been set for oral arguments.