State high court clarifies ‘fair report’ defense

NEW HAMPSHIRE–The New Hampshire Supreme Court held in late November that the ‘fair report’ privilege is recognized in the state, reversing a lower court’s ruling that refused to apply the privilege in a defamation suit against a newspaper.

The court ruled that the privilege applies to the publication of defamatory matter concerning another in a report of an official action or public meeting provided the report is accurate and complete. A defendant who asserts the fair report privilege has the burden of showing its applicability, and the question of whether the defendant has met the burden must be determined by the trial court, the high court held.

The trial court did not determine whether the Lebanon, N.H. Valley News had met this burden in the libel suit filed against the paper by Lynn Hayes. Hayes claimed that it published defamatory statements about her in an article about a public meeting. At the meeting, people discussed the controversial activities of a specific family, which was identified by the newspaper as Hayes and her family.

Instead, the trial judge denied the newspaper’s motion for summary judgment, holding that New Hampshire does not recognize the fair report privilege. The trial court ruled that the question was whether the newspaper negligently disregarded the truth, which was a question for the jury.

The Valley News appealed to the New Hampshire Supreme Court, which vacated the trial court’s ruling and remanded the case for further proceedings. (Hayes v. Newspapers of New Hampshire, Inc.; Media Counsel: William Chapman, Concord)