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To determine whether a plaintiff adequately pleads actual malice, the court must disregard the portions of the complaint where the Plaintiff alleges in a purely conclusory manner that the defendants had a particular state of mind in publishing the statements as threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, are insufficient to support a cause of action.The court must then search for specific allegations of a speaker's mindset, for example if the defendant provided no source for the allegedly defamatory statements, if the purported source denies giving the information, if the allegedly defamatory statements were based wholly on an unverified anonymous telephone call or were published despite obvious [specified] reasons to doubt the veracity of the informant or the accuracy of his reports or despite the inherently improbable nature of the statements themselves.
Plaintiff Resolute is a multi-entity company in the forest products industry, which harvests trees, and mills wood to create paper and generate products, among other activities. Resolute alleged that, beginning around 2012, and continuing through the present, Greenpeace targeted the company with a number of media campaigns designed to reduce the forestry company's profits through false or misleading statements about the company's impacts on the environment and on indigenous communities. According to Resolute, Greenpeace also spread false information in order to "fraudulently induce donations" to "pay its leaders and continue raising more funds." Specifically, Resolute claims that in 2012, Greenpeace published a false report accusing the company of logging in an area of Canada's Boreal forest protected by an environmental agreement, the Canadian Boreal Forest Agreement ("CBFA"). According to Resolute, Greenpeace later admitted that it had "incorrectly stated that Resolute had breached the [CBFA]." Greenpeace then began a campaign referring to Resolute Forest Products as "Resolute Forest Destroyer," in which it fabricated "phony photographic evidence" and misrepresented the location of Resolute's logging. According to Resolute, the term "forest destroyer" is false because the company harvests only a small portion of the Boreal forest. Resolute accused Greenpeace of "bad faith" because the organization once reported that a logging moratorium to which Resolute was a party protected woodland caribou habitat, but then later described Resolute's logging activities within that area — which Resolute characterizes as "miniscule" — as "endangering" the caribou. Additionally, Resolute accuses Greenpeace of falsely criticizing the forestry company's relationship with indigenous communities, when in fact the company employs community members, notwithstanding lay-offs "result[ing from] economic and market realities." Finally, Resolute claims that Greenpeace committed additional bad acts when volunteers placed banners on a Montreal landmark claiming injustice by Resolute, and when supporters presented Resolute with a "guardian tree" containing 61,000 signatures asking Resolute to protect the forest. In sum, Resolute alleged that Greenpeace publishes "whopping lie[s] . . . misrepresenting Resolute's harvesting as a major climate change risk." Relatedly, Resolute claimed it was harmed by Greenpeace's omission of certain favorable facts about Resolute in its campaigns, such as the fact that Resolute impacts only a very small percentage of the caribou population in the forests in which it operates, and that Resolute follows some forestry management standards. Resolute claimed that as a result of the Defendants' coordinated publications and associated activism, a number of the company's corporate customers in Europe and the United States, such as 3M and Best Buy, withdrew their business from Resolute, causing the company up to $100 million CND in economic harm. Accordingly to Resolute, the Defendants also caused independent auditors such as Rainforest Alliance and Forest Stewardship Council to issue bad reviews of the company. Resolute accordingly claims damages to its reputation and goodwill. Finally, Resolute seeks an injunction against "wrongful activity and disgorgement." Defendants Greenpeace Intl. et al. filed various motions to deter said suit, including various motions to dismiss.
Should Resolute’s claims for defamation and tortious interference be dismissed for lack of actual malice shown?
Resolute asserted, without corresponding details, that "[t]he false and defamatory statements set forth herein concerning Plaintiffs were made and published with actual malice, as such statements were made by Defendants with knowledge of their falsity or reckless disregard for their truth." This was, at most, "a formulaic recitation of the elements of a cause of action," which the Supreme Court has made clear "will not do." Setting aside the conclusory allegations, the most specific allegation in the complaint which could show actual malice was that Greenpeace "concocted a scheme to falsely accuse Resolute of breaching the CBFA." It could be inferred that this false accusation was made knowingly because it allegedly derived from photos that "were faked." Similarly, Resolute alleged that Greenpeace "redrew maps and rewrote long-standing geographical delineations" when it made false claims about where Resolute harvested. While these allegations certainly suggest some degree of knowledge or intent, Resolute dod not explain that Greenpeace knew the photos were faked, rather than mistaken, and no such inference can be drawn because Greenpeace shortly thereafter retracted its statement because it relied on "inaccurate maps." The plausible inference from this allegation was that Greenpeace made a mistake, not that it acted with malice. Likewise, Resolute claimed that Greenpeace knowingly made false statements that Resolute was "a controversial logging company" responsible for "significant degradation" of the forest. Resolute did not, and likely could not, claim that the Greenpeace speaker responsible for this statement "in fact entertained serious doubts as to the truth" of this statement, as it appears to be a claim that Greenpeace held honestly. In sum, fatal to its ability to show actual malice, Resolute "does not provide any specific allegations that would support a finding that [the Defendants] harbored serious subjective doubts as to the validity of [their] assertions." Moreover, even if these allegations were sufficiently specific to meet the "demanding burden" of showing Greenpeace spoke with an actually malicious mindset, Resolute still fell short because the company never alleged who among the "Greenpeace enterprise" made the knowingly false statements. All of Resolute's discussions of photograph faking and map redrawing failed to specify what individual did the faking, and Resolute did not allege that the speaker of the alleged false statements regarding the CFBA knew that the photos were faked or maps redrawn. While Resolute does specifically allege some statements by specific individuals, for example that Rolf Skar emailed Hearst fake evidence showing a violation of the CFBA, it did not allege that Skar knew this evidence was fake nor that any specific Greenpeace individual made a false claim relying on information, including photos or maps, that that individual knew to be false at the time they made the claim. Accordingly, Resolute failed to state a claim for actual malice. Additionally, while the facts pleaded in Resolute's complaint could, if true, show ill will or bad faith, such a showing could not support actual malice. For example, Resolute claimed Greenpeace operated in bad faith because it earlier stated that the caribou population was protected, and then later stated that it was endangered by Resolute's activities. The Ninth Circuit has held that evidence showing that a party had "initial enthusiasm" for, but later made negative statements against, the party suing her for defamation was "not probative of whether she acted with actual malice.” Similarly, Resolute suggested that the Defendants were able to draw more donations because of their alleged defamatory statements. The Supreme Court has explained, however, that "the actual malice standard is not satisfied merely through a showing of ill will or malice in the ordinary sense of the term . . . nor that the defendant published the defamatory material in order to increase its profits."