The dossier claimed at one point that Russian Internet entrepreneur Aleksej Gubarev’s companies, Webzilla and XBT Holding, played a role aiding the Russian government’s effort to hack documents from Democratic Party officials.
Gubarev filed a lawsuit in February 2017 alleging his reputation had been damaged by false statements included in the dossier. In addition to BuzzFeed, Gubarev sued its author, former British spy Christopher Steele, who had turned the reports over to researchers working on behalf of Hillary Clinton’s presidential campaign.
On Wednesday, U.S. District Court Judge Ursula Ungaro for the Southern District of Florida held that the dossier dealt with a matter of public concern and reporting the details of an ongoing government investigation was made in the public interest.
“The press acts as the agent of the public, gathering and compiling diffuse information in the public domain. The press also provides the public with the information it needs to exercise oversight of the government and with information concerning the public welfare,” she wrote in the opinion, noting that the “fair report privilege” exists to protect the press in its watchdog efforts.
Wednesday’s decision hinged on whether BuzzFeed’s controversial decision to publish was protected by that right.
Under the fair report rule, “a civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding,” including any official investigation, even if it is not open to the public.
The court determined two presidents had been briefed on the dossier. Because BuzzFeed’s report was an accurate and complete account and there was an active FBI investigation at the time of publication, the fair report privilege protected it, even if the published material was defamatory.
BuzzFeed and its legal team were overjoyed by the decision.
Editor Ben Smith issued a statement Wednesday evening recalling the pressure and ridicule his news organization faced after publication: “When we published the Steele Dossier in 2017, we were met with outrage from many corners — a major news anchor and President Trump both deemed it ‘fake news’; and several Russian businessmen, plus Michael Cohen, sued for defamation,” he said.
Two years later “a federal judge has vindicated our decision,” he said in an emailed statement. “As Judge Ungaro affirmed in her ruling, a key principle underlying the First Amendment is that the public has a right to know about actions taken by its government. As we have said from the start, a document that had been circulating at the highest levels of government, under active investigation by the FBI, and briefed to two successive presidents, is clearly the subject of ‘official action.’”
He added that the decision to publish “has contributed to the American people’s understanding of what is happening in their country and their government. We are thrilled by today’s outcome.”
One of BuzzFeed’s lawyers on the case, Katherine Bolger, said she was “giddy” after reading the judge’s decision.
“I am thrilled because the decision to dismiss is based on the public’s right to know what the government is doing. It’s a uniquely American way of looking at the world. It is good for journalists and for the country,” she said.
Wednesday’s decision made moot Gubarev’s claims of defamation and whether BuzzFeed failed to meet its standard of care.
“Nothing in today’s ruling by the Court suggests in any way that the allegations concerning Mr. Gubarev, Webzilla, or XBT Holding were true,” Gubarev’s lawyer, Val Gurvits, said in a statement Wednesday. “Instead, the Court ruled on a narrow legal issue, finding that BuzzFeed had a privilege to publish the information even if it was false.”
The opinion also revealed new details about who circulated the dossier. Of note, it was provided in late 2016 to a member of the White House National Security Council staff, as well as to Rep. Adam Kinzinger (R-Ill.), and the chief of staff to House Speaker Paul D. Ryan (R-Wis.).
Although the court record “does not reveal what, if anything, these people did with the report,” it mentioned the FBI possessed it before BuzzFeed’s publication, too.
The case is likely to continue to reverberate in the coming days. Gubarev intends to appeal the decision, according to his attorney.
The judge is also considering whether to release previously sealed depositions.
To counter Gubarev’s defamation claim, experts were deposed and asked to evaluate whether details of the dossier — including the claims about Webzilla and XBT Holding — were accurate or even plausible. The expert findings have been under seal, but the New York Times requested the depositions be made public. A judge is expected to rule soon on the request.