A Wisconsin state appeals court has affirmed a lower court’s ruling that sided with a Major League Baseball team and a broadcaster in a case where the two were sued for defamation and invasion of privacy by a fan.
In 2006, plaintiff Ann E. Ladd was accused of felony stalking because of her obsession with broadcaster Robert G. (Bob) Uecker, a radio broadcaster for the Milwaukee Brewers Baseball Club. Later that year, a Milwaukee County Circuit Court issued an injunction against Ladd pursuant to WIS. STAT. § 813.125 (2007-08). Once the injunction period ended, the prosecutor dismissed the criminal charge.
Without first giving written notice, see WIS. STAT. § 895.05(2), on September 8, 2008, Ladd filed a “sprawling” pro se complaint alleging that between June 1 and September 7, 2006, “Uecker defamed her in the affidavit supporting the injunction petition; he and/or the Brewers published the allegedly defamatory affidavit to a website called thesmokinggun.com; the Brewers posted on their website a defamatory article regarding her removal from a spring training game in Maryvale, Arizona; and a claim for ‘false light invasion of privacy’ for, among other things, making and republishing false, defamatory statements and photographing her in the stands at various baseball stadiums.”
Uecker and the Brewers successfully moved to dismiss Ladd’s complaint, making the following arguments: “(1) the claims relating to Uecker’s affidavit are barred because they fall outside the WIS. STAT. § 893.57 two-year statute of limitations; (2) those claims are further barred by the absolute privilege for statements made in the course of judicial proceedings; (3) the sole defamation claim not barred by the statute of limitations, the March 2007 Associated Press (AP) news story appearing on the Brewers’ website, is protected by the ‘wire-service’ privilege; and (4) Wisconsin does not recognize ‘false light invasion of privacy’ and Ladd pled no facts showing an invasion of any privacy rights Wisconsin does recognize.”
Ladd appealed.
The appeals court reviewed Ladd’s argument that “although Uecker and/or the Brewers allegedly posted his affidavit to thesmokinggun.com on June 2, 2006, the purportedly defamatory statements still can be accessed on the Internet today. She contends that the information therefore is republished each time someone visits that website or others to which the material has found its way, thus renewing her cause of action. We disagree. ‘Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.’ RESTATEMENT (SECOND) OF TORTS § 577A(3) (1977). Wisconsin has not yet addressed the multiple- or single-publication rule head-on. See Voit v. Madison Newspapers, Inc., 116 Wis. 2d 217, 227, 341 N.W.2d 693 (1984) (Abrahamson, J., concurring); see also id. at 223. The great majority of courts have, however, followed the single-publication rule. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 n. 8, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984); see also RESTATEMENT (SECOND) OF TORTS § 577A, Reporter’s Note.”
Some courts have applied the single-publication rule specifically to publication on the Internet. See, e.g., Firth v. State, 98 N.Y.2d 365, 775 N.E.2d 463, 465-66, 747 N.Y.S.2d 69 (N.Y. 2002). We do so here. We hold that ‘republishing’ the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations. Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each ‘hit’ or viewing of the information should be considered a new publication that retriggers the statute of limitations.”
The appeals court also agreed with the trial court that “statements ‘pertinent or relevant to the case’ that are made in the course of judicial proceedings are absolutely privileged and insulate the speaker from liability. Bergman v. Hupy, 64 Wis. 2d 747, 750, 221 N.W.2d 898 (1974). Uecker’s written affidavits and courtroom testimony are absolutely privileged.” It disagreed with the plaintiff’s contention that such statements “lost their absolute privilege through ‘excessive publication’ on the Internet.”
Additionally, the appeals court affirmed the trial court’s finding that the team had not defamed Ladd either.
“The Brewers advised Ladd in December 2006 that, in light of the harassment injunction, they would deny her entrance to the spring training facility in March 2007 should she purchase a ticket. Upon finding her in the stands, they were entitled to have her removed. As Ladd’s ticket indicates, a ticket of admission to a place of amusement is simply a license to view a performance that the owner or proprietor may revoke at will. See 27A AM.JUR. 2d Entertainment and Sports Law § 42 (2008); see also Soderholm v. Chicago Nat’l League Ball Club, Inc., 225 Ill. App. 3d 119, 587 N.E.2d 517, 520-21, 167 Ill. Dec. 248 (Ill. App. Ct. 1992). Any statements the Brewers may have made to the Phoenix police in connection with the incident enjoy a conditional privilege, see Heggy, 156 Wis. 2d at 192, which Ladd has not rebutted by showing actual malice. See Otten v. Schutt, 15 Wis. 2d 497, 504, 113 N.W.2d 152 (1962).
“Ladd then directs us to an allegedly defamatory March 20, 2007 article in the Brewers’ online news archive about the Maryvale incident. Assuming, as Ladd contends, that the Brewers posted the story there, and accepting simply for argument’s sake that the article is defamatory, this claim also fails. Before filing suit, Ladd did not give written notice to the Brewers providing them ‘a reasonable opportunity to correct the libelous matter.’ See Wis. Stat. § 895.05(2). Her failure to give notice is fatal to her claim. See Hucko v. Jos. Schlitz Brewing Co., 100 Wis. 2d 372, 374, 302 N.W.2d 68 (Ct. App. 1981).
“Furthermore, the report bears an AP copyright. The Brewers are protected by the ‘wire-service’ privilege, under which news disseminators ‘that rely on the accuracy of a wire service release are not negligent as a matter of law.’ See Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d 905, 920, 447 N.W.2d 105 (Ct. App. 1989) (describing the privilege); see also Cole v. Star Tribune, 581 N.W.2d 364, 368 (Minn. Ct. App. 1998) (stating that Wisconsin has adopted. The AP story also bears a disclaimer that it ‘was not subject to the approval of Major League Baseball or its clubs.’”
Lastly, the appeals court looked at whether the Brewers invaded her privacy by taking photographs of her in the stands at baseball parks and disseminating her “mug shot” and information about the injunction and the spring training incident.”None of these involved private places, using her likeness for advertising or trade, or depictions of nudity,” wrote the court. “Further, they are matters of public record.”
Ann E. Ladd v. Robert G. Uecker and Milwaukee Brewers Baseball Club, L. P.; Ct. App. Wisc., Dist. Two; Appeal No. 2009AP596, 2010 Wisc. App. LEXIS 68; 1/27/10
