Delaware court hears appeal in Carter Page defamation suit

October 13, 2021 GMT

DOVER, Del. (AP) — The Delaware Supreme Court heard arguments Wednesday in a defamation lawsuit filed by former Donald Trump campaign operative Carter Page against the media company that includes Yahoo! and AOL and formerly owned HuffPost.

Attorneys for Page, who attended the hearing, argued that a Superior Court judge erred in dismissing the lawsuit in February after finding that Page had failed to demonstrate that articles about the FBI investigation into suspected Russian interference in the 2016 presidential campaign defamed him.

The lawsuit was filed last year against Oath Inc., a wholly owned subsidiary of Verizon Communications Inc. that is now known as Verizon Media and which includes Yahoo! and AOL. The company also owned HuffPost, formerly known as The Huffington Post, but sold it to BuzzFeed in November.

Page claimed that he was harmed by the publication of false and defamatory statements suggesting that he was secretly plotting with Russian officials. He was the target of a secret surveillance campaign by the FBI but was never charged with any wrongdoing.

Page sought to hold Oath liable for 11 articles, particularly one written by Michael Isikoff and published by Yahoo! in September 2016. That article was followed by three others from HuffPost employees and seven from third-party contributors to HuffPost.

Page took specific exception with Isikoff’s description of a dossier of information compiled during the 2016 presidential campaign by Christopher Steele, a former British spy whose research into ties between Trump and Russia was financed by Democrats. The FBI used the dossier to obtain warrants to eavesdrop on Page, even though it was alerted that it might contain Russian disinformation, and that a key source for Steele was himself the target of an FBI investigation for possible connections to Russian intelligence.

Isikoff described the dossier as an “intelligence report” and referred to Steele as “a well placed intelligence source,” according to court records.

“The truth is that the reporter, Mr. Isikoff, knew that the Steele dossier and its fabrications were false,” Page attorney Todd McMurtry argued Wednesday, adding that Page became the focus of “a completely fabricated investigation and a fabricated story planted for political purposes.”

In their appeal, Page’s attorneys challenged Judge Craig Karsnitz’s determination that Page had to properly allege not only that Oath, the defendant in the lawsuit, had acted with actual malice, but that the author of each article also acted with actual malice.

They also said Karsnitz erred in ruling that, under Section 230 of the Communications Decency Act, Oath could not be held liable for the seven articles posted by contributors. That provision protects social media platforms from being sued by someone who feels wronged by something someone else has posted, regardless of whether the complaint is legitimate.

Page’s attorneys contend that Oath was not merely a neutral “interactive computer service” subject to Section 230′s protections, but was instead an “information content provider.”

“Oath has never suggested it is an open platform akin to Facebook or Twitter,” they wrote in court papers. “No member of this court or any other person is able to go online and publish an article on Oath’s HuffPost website on one’s own initiative.”

Finally, Page’s attorneys argue that Karsnitz erred in finding that the Isikoff article was true, or substantially true, and that Isikoff was protected from defamation liability under the “fair report privilege” afforded journalists reporting on official proceedings.

“The irony is that this alleged treason was not ‘reported,’” they wrote in a court filing. “As the FBI has now stated publicly, the Isikoff article was the report.”

David Parker, an attorney for Oath, said the case has important First Amendment implications, and that the judge’s decision should be upheld.

“We’re talking about speech about the fitness of a presidential campaign and possible collusion with a foreign power,” he noted.

Parker maintained that the Isikoff article was true. Under questioning by Justice Karen Valihura, he also stood by the defense assertion that the Steele dossier was an “intelligence report” because it had been received by an intelligence agency.

“If I send the CIA a weather report that it’s going to be 77 and sunny today, that’s an intelligence report?” Valihura asked.

“Yes, I think as the term is used in this particular article, that is true,” responded Parker, who also maintained that Steele was “a well-placed Western intelligence source,” even if his information was unreliable.

The court is expected to issue a ruling within 90 days.