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  • WisBar News
    October 17, 2013

    Investigative TV Reporter Did Not Defame Alleged Scammer, Appeals Court Rules

    Oct. 17, 2013 – An investigative TV reporter caught wind of a potential scam: a wedding videographer who took money from couples and did not deliver as promised. Recently, a state appeals court ruled the reporter did not defame the videographer in broadcasts shedding light on the situation.

    The script is not unique. An aggressive reporter uncovers alleged scams that target consumers by confronting the alleged wrongdoer, all caught on tape. These shows or reports are preceded by sensational video clips of the confrontation.

    In this case, WTMJ-4 investigative reporter John Mercure received a call from a recently married couple, Jana and Chad Uebele. They claimed Angela Terry, who ran a part-time videography service called “Angie’s Wedding Videos,” was running a scam.

    The Uebele’s had paid Terry $1,000 to record their wedding, but they did not receive the video within the 10-12 weeks promised in the business brochure. The Uebele’s received the video seven months after the wedding, and they weren’t happy with the quality. Another couple had the same experience. They did not receive their video for a year.

    Mercure visited Terry at her home, cameraman in toe. In the interview, Mercure suggested Terry was scamming people before Terry ended the interview, making a throat-cutting gesture for the taping to stop. Cameras kept rolling, though.

    Terry’s son attempted to forcibly remove Mercure from the home, and Terry covered cameras with her hand. This all made for riveting footage, of course.

    Mercure also interviewed a state consumer affairs specialist who said the Uebele’s got ripped off and made other statements about civil and criminal penalties. All of this was broadcasted in commercials, in Mercure’s reporting segment, and in his blog.

    In 2008, Terry filed a lawsuit against the Uebele’s, Mercure, WTMJ-4, Journal Broadcast Corporation, and several other defendants. She sued for defamation. The circuit court granted summary judgment to defendants, and Terry appealed.

    In Terry v. Mercure et al., 2012AP1682 (Oct. 15, 2013), a three-judge panel for the District I Court of Appeals affirmed, concluding that that all alleged defamatory statements in question were either opinions are substantially true.

    Defamation requires a false statement to be communicated in speech, conduct, or writing to a third-person, and the communication must harm the subject’s reputation.

    “In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false,” wrote Judge Joan Kessler, citing verbatim language from a 2002 appeals court case.

    Terry argued that Mercure made a false statement when he said Terry “was facing criminal charges.” Terry, in fact, was never charged with a crime. The state’s consumer affairs specialist did not refer the case for prosecution because Terry cooperated with inquiries by the Wisconsin Department of Agriculture, Trade and Consumer Protection.

    But the appeals court ruled that Mercure’s statement did not amount to a false statement. “None of the broadcasts or corresponding internet stories stated that Terry was actually charged with a crime,” Judge Kessler explained.

    “In the context of the broadcast and [the consumer affairs specialist’s] statements, it is clear that ‘facing criminal charges’ meant that Terry could potentially be charged for the failure to provide paying couples with their wedding videos, which was true.”

    In addition, the court ruled that other statements made in broadcasts, promotional advertisements, or on the Internet, were not defamatory. For instance, Mercure had referred to Terry as a scammer and a cheat, which the court viewed as opinions.

    “We agree that all of these terms, in the context in which they were used, convey statements of opinion that are not defamatory,” Judge Kessler wrote.

    “The use of these terms all stemmed from the fundamental fact that Terry did not deliver a product within the time the purchasers believed it was promised despite paying for it.”

    Terry also argued that statements, images and sounds depicted in the broadcasts portrayed her as “freakish and dangerous.” For instance, the broadcasts showed Terry using a throat-cutting motion and recorded the physical altercation at her home.

    However, the appeals court ruled that these depictions were not defamatory, because “Terry cannot maintain a defamation action for how she feels she was portrayed.”

    Finally, the appeals court rejected Terry’s claims that the TV station misappropriated her image and invaded her privacy because they did not have her consent to tape the interview and did not stop recording when she asked Mercure to end the interview.

    “Mercure’s interview with Terry, though contentious, served a legitimate public interest – consumer affairs reporting where the consumers had arguably been treated unfairly,” Judge Kessler noted. “We decline to conclude that a reporter’s interview with the accused party constitutes an invasion of privacy under § 995.50.”

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