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When deciding how to construe allegedly defamatory words—which when written or in print constitute libel—courts must do so in the context of the publication as a whole, not just the paragraph or chapter containing them, and do so in the same way that the reading public, acquainted with the parties and the subject would take them. In New York, a plaintiff must establish five elements to recover in libel: (1) a written defamatory factual statement concerning the plaintiff; (2) publication to a third party; (3) fault ; (4) falsity of the defamatory statement; and (5) special damages or per se actionability. On closer inspection, the first element of these five is actually composed of multiple parts: there must be (A) a writing, it must be (B) defamatory, it must be (C) factual—that is, not opinion—and it must be (D) about the plaintiff, not just a general statement.
Plaintiffs, an investment professional and his firm, brought claims alleging libel against defendants, an author, his source, and his publisher, for twenty-six allegedly defamatory statements in the author's book. The book painted plaintiffs in negative light. The district court granted summary judgment to defendants. Plaintiffs appealed.
Did the author’s book contain defamatory statements, thereby rendering the grant of summary judgment to the defendants an error?
Applying New York law, the court held that the district court properly granted summary judgment to defendants because none of the statements were actionable defamation. They either were substantially true, were not "of or concerning" plaintiffs, were not reasonably susceptible to any defamatory meaning, or were mere opinions rather than assertions of fact. The statements were not libel as a matter of law.