[Cite as Sullins v. Raycom Media, Inc.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99235

LAVELLE SULLINS PLAINTIFF-APPELLANT

vs.

RAYCOM MEDIA, INC., ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771804

BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: August 15, 2013 ATTORNEYS FOR APPELLANT

Joshua R. Cohen Peter G. Pattakos Cohen, Rosenthal & Kramer 700 West St. Clair Avenue The Hoyt Block Building - Suite 400 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C.

Michael K. Farrell Melissa A. Degaetano Baker & Hostetler L.L.P. PNC Center 1900 East 9th Street Suite 3200 Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS

George S. Crisci Jonathan D. Decker Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC.

Daniel Thiel 75 Public Square Suite 650 Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:

{¶1} In this defamation action, plaintiff-appellant Lavelle Sullins appeals from

the decision of the Cuyahoga County Court of Common Pleas granting summary

judgment in favor of defendants-appellees Pinpoint Media, Inc. (“Pinpoint Media”),

Cuyahoga County Crime Stoppers (“Crime Stoppers”), and WUAB and WOIO, L.L.C.

(“WOIO”) (collectively, “appellees”). Appellees, respectively, are a production

company that produced a local television crime show, Warrant Unit, an organization that

offers rewards to the public for information regarding unsolved crimes, and two

Cleveland television stations that broadcast the Warrant Unit television program. Sullins

alleged that appellees defamed him when they depicted him on the Warrant Unit

television program as a fugitive for the crime of passing bad checks, when, in fact, he had

satisfied his sentence five months earlier, after pleading guilty to one count of the offense.

Based on our review of the record, we find that genuine issues of material fact exist as to

the viability of Sullins’s defamation claim. Accordingly, we reverse the trial court’s

entry of summary judgment on that claim.

Factual and Procedural Background

{¶2} Sullins was featured on episode 17 of the Warrant Unit television program in

a segment of the program called “Fugitive File,” which identifies “Cleveland’s 25 Most

Wanted Fugitives.” For approximately seven or eight seconds, Sullins’s photograph was

shown, along with his name, age, height, weight, and address above the charge, “PASSING BAD CHECKS.” Sullins’s information and photograph were accompanied

by the narrative, “Lavelle Sullins. Wanted for passing bad checks.” A reward was

offered for information leading to Sullins’s arrest. The narrator cautioned viewers

against trying to apprehend Sullins or the other fugitives featured on the program

themselves, warning: “Do not attempt to apprehend these people. You leave that to the

professionals.” The episode featuring Sullins aired on March 27, 2010. The program

averages 56,000 viewers a week.1

{¶3} Although a capias had been issued for Sullins’s arrest on a charge of passing

a bad check in March 2009, more than a year earlier, there is no dispute that Sullins was

not, in fact, a “fugitive” for “passing bad checks” at the time the program aired. The

capias issued in March 2009 related to charges filed against Sullins after he bounced a

check for $1,536 in connection with his purchase of a used vehicle several years earlier.

Four days after it was issued, the capias was recalled. On April 30, 2009, Sullins pled

guilty to one count of passing a bad check. He was sentenced to one year of community

control sanctions and required to make restitution. Sullins made full restitution, and his

community control sanctions were terminated early. As of October 16, 2009, more than

five months before episode 17 of the Warrant Unit program aired, Sullins was deemed to

have satisfied his sentence.

1 As it relates to the Warrant Unit program, Pinpoint Media has a “straight barter” arrangement with WOIO. WOIO gives Pinpoint Media certain commercial spots to sell during the Warrant Unit program and keeps the revenue received for selling those spots; in exchange, WOIO receives a finished program to air. Any reward money paid to viewers for information that leads to a suspect’s arrest is paid by Crime Stoppers. {¶4} The “Fugitive File” segment was prepared using information obtained from

the Cuyahoga County Sheriff’s Department. Erin Acklin, a dispatcher for the sheriff’s

department, was charged with running reports on valid warrants and providing

information on suspects to Crime Stoppers for use on the Warrant Unit television

program. Approximately once a month, Acklin would compile excerpts of

approximately 70 files from the department’s Incarceration Management and Cost

Recovery System (“IMACS”). The IMACS system is a non-public system used by the

sheriff’s department, which contains information regarding outstanding warrants. Acklin

testified that there were no specific parameters she followed in selecting suspect files for

use on the Warrant Unit program, other than to avoid warrants for drug charges and

probation violations — “they wanted fresh warrants” — and to ensure that the group of

suspects was diverse, i.e., to avoid sending “a lot of black males,” as requested by

Pinpoint Media. At the time she pulled the files, Acklin verified whether a warrant was

outstanding based on the information in the IMACS system. Acklin then compiled a

package of information on each suspect, consisting of the jacket front from the file of

each suspect, a photograph, and a “booking sheet” printed from the IMACS system from

the time the suspect was last booked. Once she prepared a stack of files, she would

contact Christopher Rech, president and executive producer of Pinpoint Media, and

advise him that the files were available for pickup. Because the status of a warrant could

change at any time, Acklin testified that she and her sergeant, Sergeant David Synkowski,

told Pinpoint Media “all the time” to update the information after Acklin gave it to them by “double checking” the status on the public docket for the Cuyahoga County Court of

Common Pleas. Acklin did not know how long it took before the sheriff’s department

received notice that a warrant had been withdrawn.

{¶5} Approximately once a week, David Rutt, coordinator for Crime Stoppers,

picked up the information Acklin had compiled for the fugitives to be featured on the

Warrant Unit program. Rutt would then deliver this information, without reviewing it, to

Pinpoint Media for use in preparing the “Fugitive File” segment. With respect to Sullins,

appellees received three pages of documents from the sheriff’s department. The

documents included a chart printed from the IMACS system that listed Sullins’s name,

the “record type” — “warrant” — the warrant/order number, and a brief description of the

charge for which the warrant had been issued, i.e., four counts of “passing bad checks.”

Appellees also received a copies of Sullins’s mug shots and a printout of a “booking

sheet” that contained Sullins’s personal information and physical description. The

“booking sheet” identified Sullins’s “inmate status” as “convicted” and also indicated that

“holds” that had been previously placed by three suburban communities had been

“removed.” Although the sheriff’s department represented, based on its records, that

there was an outstanding warrant for Sullins’s arrest as of the time Acklin compiled

Sullins’s information for the Warrant Unit program, there was nothing in the

documentation appellees received from the sheriff’s department that indicated the status

of the warrant or when it had been issued.

{¶6} Pinpoint Media claims to have received Sullins’s information from the sheriff’s department “shortly before” the episode featuring Sullins aired on March 27,

2010; however, there is nothing in the record that indicates exactly when appellees

received Sullins’s information from the sheriff’s department or how long after appellees

received this information that Sullins was featured on the Warrant Unit program. Sullins

claims that had appellees checked the Cuyahoga County public docket prior to airing the

episode, as instructed by the sheriff’s department, they would have discovered that the

warrant for his arrest for passing a bad check had been withdrawn more than a year

earlier. Sullins further claims that the inaccurate reporting of Sullins’s “fugitive” status

was not an aberration. Of the 27 “fugitives” featured on Episode 17 of the Warrant Unit

program, he contends 11 were not, in fact, “fugitives” at the time the program aired.

{¶7} Although there was no outstanding warrant for Sullins’s arrest for passing

bad checks at the time episode 17 aired, at least five warrants for his arrest were

outstanding at that time related to misdemeanor traffic offenses pending in the city of

Cleveland. Appellees, however, were not aware of the existence of these other warrants

at the time the program aired.

{¶8} After the program aired, Sullins filed suit against appellees, alleging that the

broadcast was defamatory per se and depicted him in a false light.2 He further claimed

that, as a result of the broadcast, he lost his job and access to his children and that his

2 Sullins originally filed suit against appellees and Raycom Media, Inc. (“Raycom Media”), WOIO’s parent company, on November 15, 2010, asserting a defamation claim. On September 12, 2011, he voluntarily dismissed the case without prejudice. He refiled his complaint on December 20, 2011, adding a claim for false-light invasion of privacy. Sullins dismissed Raycom Media with prejudice on November 13, 2012. reputation in the community was damaged.

{¶9} In August 2012, appellees filed separate motions for summary judgment in

which they argued, among other grounds, that the statements made regarding Sullins

during the Warrant Unit program — i.e., that he was a “fugitive” wanted on an

outstanding warrant for “passing bad checks” and one of “Cleveland’s 25 Most Wanted

Fugitives” — were protected by Ohio’s statutory fair report privilege and common-law

qualified privilege, that Sullins could not establish that appellees acted with the requisite

degree of fault, and that the substantial truth and incremental harm doctrines barred

Sullins’s claims. On November 27, 2012, the trial court granted appellees’ motions for

summary judgment. The trial court held that appellees’ depiction of Sullins as “evading

arrest on a present charge of passing bad checks” was “arguably libelous per se.”

However, because the information appellees published was the same, albeit inaccurate,

information contained in the sheriff’s department’s IMACS system, the trial court held

that appellees’ statements were protected by Ohio’s statutory fair report privilege, R.C.

2317.05. Finding no factual basis to upon which conclude that appellees acted with

“actual malice” — as required to defeat the privilege — and concluding that Sullins could

not establish essential elements of a false-light invasion of privacy claim, the trial court

entered summary judgment in favor of appellees on both Sullins’s defamation and

false-light invasion of privacy claims.

{¶10} Sullins appeals the trial court’s entry of summary judgment in favor of

appellees on his defamation claim, raising as his sole assignment of error: The trial court erred in granting summary judgment to the Defendants on Sullins’s defamation claim.

{¶11} Sullins does not assign as error the trial court’s entry of summary judgment

on his false-light invasion of privacy claim. Accordingly, we affirm the trial court’s

entry of summary judgment on that claim. However, for the reasons set forth below, we

find that genuine issues of material fact exist that preclude summary judgment on

Sullins’s defamation claim. We, therefore, reverse the trial court’s grant of summary

judgment in favor of appellees on Sullins’s defamation claim.

Standard of Review

{¶12} An appeal of a trial court’s summary judgment ruling is subject to a de novo

standard of review. Grafton v. Ohio Edison Co.,

,

(1996). We accord no deference to the trial court’s decision and independently review

the record to determine whether summary judgment is appropriate.

{¶13} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue exists as to any material fact, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion, which is adverse to

the nonmoving party.

{¶14} The moving party carries an initial burden of setting forth specific facts that

demonstrate his or her entitlement to summary judgment. Dresher v. Burt,

,

(1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, summary

judgment is appropriate only if the nonmoving party fails to establish the existence of a

genuine issue of material fact.

.

Defamation

{¶15} Defamation occurs when a publication contains a false statement “‘made

with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a

person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person

adversely in his or her trade, business or profession.’” Jackson v. Columbus,

,

,

, ¶ 9, quoting A & B-Abell Elevator Co. v.

Columbus/Cent. Ohio Bldg. & Constr. Trades Council,

,

(1995). To establish a claim for defamation, a plaintiff must show: (1) a false

statement of fact was made about the plaintiff, (2) the statement was defamatory, (3) the

statement was published, (4) the plaintiff suffered injury as a proximate result of the

publication, and (5) the defendant acted with the requisite degree of fault in publishing

the statement. Am. Chem. Soc. v. Leadscope, Inc.,

,

,

, ¶ 77, citing Pollock v. Rashid,

,

(1st Dist. 1996); see also Lucas v. Perciak, 8th Dist. Cuyahoga No.

96962,

, citing Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil

Servs., Inc.,

,

(9th Dist. 1992).

{¶16} In this case, there is no dispute that Sullins was not, in fact, a “fugitive”

wanted on an outstanding warrant for “passing bad checks” — as represented on the Warrant Unit program — at the time the program aired. Nor is there any dispute that the

false statement was published.

{¶17} With respect to the second element — whether the false depiction of Sullins

was defamatory — courts distinguish between defamation per se and defamation per

quod. “‘Defamation per se occurs when material is defamatory on its face; defamation

per quod occurs when material is defamatory through interpretation or innuendo.’” N.E.

Ohio Elite Gymnastics Training Ctr. Inc. v. Osborne,

,

,

, quoting Gosden v. Louis,

,

(9th Dist. 1996). A statement is defamatory per se, if, on its

face, “it reflects upon a person’s character in a manner that will cause [the person] to be

ridiculed, hated, or held in contempt” or in a manner that “tends to injure” the person in

his or her trade or occupation.

; Ratkosky v. CSX Transp., Inc., 8th

Dist. Cuyahoga No. 92061,

, ¶ 46. Unless a privilege applies, damages

and fault are generally presumed to exist if a statement is defamatory per se.3 See, e.g.,

3 With respect to the fourth element, where fault is not presumed, the degree of fault required to prevail on a defamation claim depends on the status of the person allegedly defamed, ranging from a private individual to a public figure. Kassouf v. Cleveland Magazine City Magazines,

,

(11th Dist. 2001). When a plaintiff is a private individual, the court applies a negligence standard; when a plaintiff is a public figure or a limited purpose public figure, the plaintiff must prove that the publisher acted with actual malice in publishing the alleged defamatory statement.

; Jackson,

,

,

, at ¶ 10; New York Times v. Sullivan,

,

,

(1964).

Appellees argued below that Sullins was a “limited purpose public figure.” We disagree. An individual who commits a crime does not generally become a limited purpose public figure “in relation to alleged defamation arising from a crime Lewandowski v. Penske Auto Group, 8th Dist. Cuyahoga No. 94377,

, ¶

25, citing Wampler v. Higgins,

,

.; Lennon v.

Cuyahoga Cty. Juvenile Court, 8th Dist. Cuyahoga No. 86651,

;

Miller v. Cent. Ohio Crime Stoppers, Inc., 10th Dist. Franklin No. 07AP-669,

. If an alleged defamatory statement is unambiguous, whether it is

defamatory per se is a question of law for the court to determine. Gosden at 207, citing

Becker v. Toulmin,

, 555,

(1956).

{¶18} A false written statement or television broadcast accusing a person of

committing a crime is defamatory per se. See, e.g.,

, citing Akron-Canton

Waste Oil,

,

, and State v. Smily,

,

that he or she committed.” Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491,

, citing

; see also Wolston v. Reader’s Digest Assn.,

,

,

(1979) (rejecting the proposition that “any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction”). A criminal defendant may be considered a limited purpose public figure only where: (1) the defendant’s conduct is a legitimate matter of public interest to the community; (2) “the press has publicized his conduct in part as a result of his own efforts to obtain publicity”; and (3) defendant’s conduct has “made him the target of a criminal proceeding about which the public has a need for information and interpretation.” Talley v. WHIO TV-7,

,

(2d Dist. 1998), quoting Orr v. Argus-Press Co.,

(6th Cir. 1978).

The record in this case does not support a finding that Sullins was anything other than a private individual plaintiff. Accordingly, if fault was not presumed, Sullins, as a private individual plaintiff, would need to show that appellees were at least negligent in publishing the false statements about him. Based on the record before us, we believe that Sullins presented sufficient evidence of negligence to defeat summary judgment on that issue. 32-33 (1881); see also Sweitzer v. Outlet Communs., Inc.,

,

(10th Dist. 1999) (defamatory matter broadcast by means of television is

classified as libel), citing Perez v. Scripps-Howard Broadcasting Co.,

,

(1988), and 3 Restatement of the Law 2d, Torts, Section 568A, at 182

(1977).

{¶19} Sullins’s defamation claim is based on appellees’ depiction of him as one of

“Cleveland’s 25 Most Wanted Fugitives,” who is evading arrest on an outstanding charge

of “passing bad checks.” We agree with Sullins that the statements at issue “reflect upon

his character” in a manner that would cause him to be “ridiculed, hated, or held in

contempt” and “tend to injure” him in his trade or occupation. Gosden,

,

; Ratkosky,

, at ¶ 46; see also Miller,

(observing that publication of dismissed warrant for plaintiff’s

arrest “is arguably defamatory per se”). Accordingly, we find that the inaccurate

depiction of Sullins on the Warrant Unit program as a fugitive presently wanted and

evading arrest on an outstanding warrant for passing bad checks is defamation per se.

The innuendo that Sullins is a bad check artist is defamation per quod.

Statutory Fair Report Privilege and Common-Law Qualified Privilege

{¶20} A defamatory statement, however, must also “be examined in the context of

privilege.” Miller,

, citing McCartney v. Oblates of St. Francis

deSales,

,

(6th Dist. 1992). Ohio law recognizes a

statutory privilege to defamation for fair reports of governmental proceedings, official records, or other information received from the government made in the public interest.

Ohio also recognizes a common-law qualified privilege. Where a defamatory statement

falls within the scope of the statutory fair report privilege or common-law qualified

privilege, the statement is not actionable unless the plaintiff establishes that the statement

was published with actual malice, i.e., with knowledge of its falsity or with reckless

disregard of whether it was false or not, to overcome the privilege. See, e.g., Lennon,

; Jackson,

,

,

, at ¶ 10, citing Jacobs v. Frank,

,

(1991),

paragraph two of the syllabus. “Reckless disregard” exists when a publisher of a

defamatory statement “acts with a ‘high degree of awareness of [the statement’s] probable

falsity,’ or when the publisher ‘in fact entertained serious doubts as to the truth of his

publication.’” (Citations omitted.)

Where a defamatory statement is subject to a

qualified privilege, “actual malice will not be presumed.”

, citing Hahn v.

Kotten,

,

(1975).

{¶21} The trial court held that the depiction of Sullins on the Warrant Unit

program was protected by Ohio’s statutory fair report privilege. The fair report privilege

originated at common law and has been codified, in part, at R.C. 2317.05. R.C. 2317.05

provides, in relevant part:

The publication of a fair and impartial report of * * * the issuing of any warrant * * * is privileged, unless it is proved that the same was published maliciously, or that defendant has refused or neglected to publish in the same manner in which the publication complained of appeared, a reasonable written explanation or contradiction thereof by the plaintiff * * *. {¶22} Sullins argues that the trial court erred in entering summary judgment based

on the statutory fair report privilege in light of evidence that (1) the sheriff’s department

provided the warrant information to appellees on the condition that they check the warrant

status before using the information and (2) appellees failed to include all of the relevant

information contained in Sullins’s booking sheet in their report. We agree.

{¶23} In assessing whether summary judgment was properly granted based on the

fair report privilege, we must determine “whether reasonable minds, upon reviewing the

facts in the case, could reach ‘but one conclusion’” as to whether the depiction of Sullins

on the Warrant Unit program was “substantially accurate.” Young v. Morning Journal,

,

(1996). Based on the record in this case, we

find that reasonable minds could reach different conclusions regarding that issue.

{¶24} The fair report privilege does not require a “verbatim reproduction of the

official record” or other information obtained from the government in order for a

published report based on the record or governmental information to fall within the scope

of the privilege. Oney v. Allen,

,

(1988), paragraph

one of the syllabus. The privilege applies if the defendant demonstrates that the

publication: (1) deals with a matter of public concern and (2) is “a fair and substantially

accurate account” of the official record or governmental information. Dinkel v. Lincoln

Publishing (Ohio), Inc.,

,

(12th Dist. 1994);

Oney at paragraph two of the syllabus. A publication is “substantially accurate” if it

“conveys the essence of the official record to the ordinary reader, without misleading the reader by the inclusion of inaccurate extra record information or the exclusion of relevant

information in the record.”

at paragraph three of the syllabus. A plaintiff “cannot

defeat summary judgment by raising purported minor discrepancies between the [report]

and the official information.” Dinkel at 346. Variances from the verbatim record are

permitted so long as the “gravaman,” “gist,” “sting,” or “substance” of the underlying

report is substantially correct. Pollock,

,

.

“Errors as to secondary facts, that is, facts which do not change the import of the story or

substantially alter the substance of the alleged defamatory (but protected) aspect of the

story, are not actionable.” Dinkel at 346; see also Young v. Gannett Satellite Information

Network,

(S.D.Ohio 2011).

{¶25} In this case, it is undisputed that the warrant information appellees obtained

from the sheriff’s department was inaccurate. However, appellees contend that because

the inaccurate information reported on the Warrant Unit program was taken from an

official governmental record, i.e., printouts from the sheriff’s department’s IMACS

warrant tracking system, and other “governmental information,” i.e., the sheriff’s

department’s oral representation that there was an outstanding warrant for Sullins’s arrest

for passing bad checks as of the date it compiled the “fugitive file” materials for

appellees, their defamatory depiction of Sullins on the Warrant Unit program falls within

the scope of the fair report privilege.4 Appellees further argue (and the trial court so

Sullins argues that because appellees did not receive a copy of the actual 4

warrant or any other “official” documentation indicating that there was an outstanding warrant for Sullins’s arrest for “passing bad checks,” they could not held) that because they published the same information as was contained in the sheriff’s

department’s IMACS system “without adding to or subtracting any information,”

appellees’ depiction of Sullins was a “substantially accurate” report, entitling appellees to

the protection of the fair report privilege as a matter of law. We disagree.

{¶26} A report based on inaccurate official records or inaccurate governmental

information may be protected by the fair report privilege. See, e.g., Smitek v. Lorain Cty.

Printing & Publishing Co., 9th Dist. Lorain No. 94CA006023,

(Oct. 11, 1995) (reports based on inaccurate official records protected against

defamation claim by fair report privilege); see also Martinez v. WTVG, Inc., 6th Dist.

Lucas No. L-07-1269,

(where governmental official gave

newspaper the wrong mug shot, report using mug shot “inaccurately accessed” by

governmental official was protected against defamation claim by fair report privilege).

In this case, however, the “governmental information” appellees used in producing the

Warrant Unit program included an explicit caveat. Although the sheriff’s department

represented, based on the information in its IMACS system, that warrants were

claim the protection of the fair report privilege. The fair report privilege is not, however, limited to the publication of information from “official” documents, but rather, also protects reports of “information provided by the government,” whether the information was provided orally or in writing. Mastandrea v. Lorain Journal Co.,

,

(11th Dist. 1989). The “information provided by the government” in this case consisted of the printouts from the IMACS system and the additional representations made by the sheriff’s department that the suspects for whom file information was provided were subject to outstanding warrants. Reports of such “governmental information” may be protected from defamation claims based on the fair report privilege if the requirements for application of the privilege are otherwise satisfied. outstanding for Sullins and the other suspects to be featured on the Warrant Unit program

as of the date the information was compiled for appellees’ use, it also knew that the status

of a warrant could change at any time, and, therefore, instructed Pinpoint Media “all the

time” to update the warrant information it received from the sheriff’s department by

checking the public docket for the Cuyahoga County Court of Common Pleas prior to

airing. {¶27} Although the sheriff’s department represented that the warrant

information it provided was accurate only as of the date the information was compiled for

appellees, appellees did not reflect that limitation in publishing the information relating to

Sullins. Appellees did not include, as part of the broadcast, the date as of which the

warrant information reported on the program was believed to be accurate.

{¶28} Further, in opposing appellees’ motions for summary judgment, Sullins

presented evidence that appellees never properly updated the warrant information they

received by checking the court’s docket, as instructed by the sheriff’s department.

Sullins also presented evidence that if appellees had properly checked the court’s docket

prior to airing, they would have discovered (1) that Sullins’s warrant for passing a bad

check had been recalled more than a year earlier and (2) that Sullins had already been

convicted of, and served his sentence for, that offense. Sullins also pointed out that the

“booking sheet” appellees received from the sheriff’s department that was linked to the

warrant for Sullins’s arrest in the IMACS system identified his “inmate status” as

“convicted.” All of this arguably “relevant information,” included in the IMACS

printouts and other “governmental information” received from the sheriff’s department, was excluded from the broadcast.

{¶29} Based upon our independent review of the record and viewing the evidence

in the light most favorable to Sullins, we believe that reasonable minds could reach

different conclusions as to whether appellees’ depiction of Sullins as one of “Cleveland’s

25 Most Wanted Fugitives,” evading arrest on a present charge of passing bad checks,

was a fair and “substantially accurate” report of the governmental information and

records upon which it was based. Accordingly, we find that the trial court erred in

granting summary judgment to appellees based on the fair report privilege. See, e.g.,

Young,

,

(trial court erred in granting summary

judgment based on R.C. 2317.05 privilege where report excluded relevant information —

i.e., middle initial of individual — and included inaccurate extra-record information —

i.e., where the individual allegedly resided — which “could be considered misleading to

the ordinary reader”).

{¶30} As an alternative basis for affirming the trial court’s award of summary

judgment in favor of appellees, Crime Stoppers and Pinpoint Media argue that Ohio’s

common-law qualified privilege shields appellees from liability on Sullins’s defamation

claim. This privilege “applies in a variety of situations where society’s interest in

compensating a person for loss of reputation is outweighed by a competing interest that

demands protection.” A & B-Abell Elevator Co.,

,

.

The privilege “does not attach to the communication, but to the occasion on which it is

made.” Gilbert v. WNIR 100 FM,

,

(9th Dist. 2001), citing A & B-Abell Elevator Co.,

,

.

The “essential elements” necessary to establish a common-law qualified privilege are

“‘good faith, an interest to be upheld, a statement limited in its scope to this purpose, a

proper occasion, and publication in a proper manner and to proper parties only.’”

Garofolo v. Fairview Park, 8th Dist. Cuyahoga Nos. 92283 and 93021,

,

¶ 19 fn.3, quoting Hahn,

,

.

{¶31} Appellees’ argument for application of the common-law qualified privilege

is based on the same facts and evidence as their argument for application of the statutory

fair report privilege. Appellees contend that they acted in good faith, that their

publication of the statement regarding Sullins furthered a public interest — i.e.,

“apprehending fugitives” by “alert[ing] citizens to the presence of dangerous criminals,”

“incentiviz[ing] citizen-police communication,” and “pressur[ing] wanted criminals into

facing justice.” Appellees further contend that the publication was limited to that

purpose and that the statement was published in a proper manner. However, the record

is clear that “apprehending fugitives” was not the only purpose for which the Warrant

Unit program was broadcast. As Pinpoint Media’s president and executive producer,

Christopher Rech, testified, “inasmuch as [it] * * * drives viewership,” one of Pinpoint

Media’s primary purposes in broadcasting the Warrant Unit program — which provides

“roughly” 50 percent of Pinpoint Media’s revenues — was to entertain.5

Because this was arguably not a consideration for Crime Stoppers, Crime Stoppers may have 5

a somewhat stronger case for application of the common-law qualified privilege. {¶32} For this reason and the reasons we determined appellees were not entitled to

summary judgment based on the statutory fair report privilege, we find that there are

genuine issues of fact regarding whether appellees acted in “good faith,” whether the

statement at issue was sufficiently limited to the public interest to be upheld, and whether

the statement was published in a proper manner. As such, appellees are not entitled to

summary judgment based on the common-law qualified privilege.6

Substantial Truth and Incremental Harm Doctrines

{¶33} Appellees also contend that even if their defamatory statements were not

privileged, the trial court’s entry of summary judgment should be upheld based on the

substantial truth and incremental harm doctrines.

{¶34} While a plaintiff must prove falsity as an element of a defamation claim, a

publisher may also “completely defend” a defamation action “by showing that the gist, or

imputation, of the [defamatory] statement is substantially true, and hence, the statement is

not false.” Sweitzer,

,

, citing Natl. Medic

Servs. Corp. v. E. W. Scripps Co.,

,

(1st

Dist. 1989); see also Stohlmann,

(“Truth is an absolute defense to

6 Because we conclude that there is a factual issue as to whether a privilege applies, we do not reach the issue of whether any privilege was overcome by a showing of actual malice. See, e.g., Martinez v. WTVG, Inc., 6th Dist. Lucas No. L-07-1269,

; Young,

fn.3; cf. Miller,

(noting that if plaintiff had pointed to “other similar situations in which police officers erred in verifying the validity of warrants, her argument that a genuine issue of fact exists concerning actual malice would be stronger”). defamation.”), citing Krems v. Univ. Hosps. of Cleveland,

,

(8th Dist. 1999); Bruss v. Vindicator Printing Co.,

,

(7th Dist. 1996) (material falsity is an essential element to a

defamation claim).

{¶35} Here, appellees contend that because Sullins had other outstanding warrants

— for traffic offenses — and had already been convicted of passing one bad check when

the program aired, there was no “substantial difference between what [was] complained

of and the literal truth” and “no more harm to [Sullins’s] reputation than the literal truth.”

{¶36} There is, however, a significant difference between a warrant for

misdemeanor traffic offenses and a warrant for “passing bad checks,” a felony involving

fraud, deceit, and dishonesty. Nor does the fact Sullins was previously convicted of one

count of passing a bad check necessarily negate the alleged harm resulting from

appellees’ inaccurate report that Sullins was, at the time the program aired, presently

wanted and evading arrest for passing multiple bad checks. Sullins had already served

the sentence for the one count of passing a bad check to which he had previously pled

guilty at the time the program aired. Someone viewing the program, who had been

aware of Sullins’s prior conviction, might have reasonably believed that Sullins had been

charged with new, unrelated counts of passing bad checks, i.e., that he was a “bad check

artist,” potentially causing further harm to Sullins’s reputation. Moreover, appellees did

not simply report that there was an outstanding warrant for Sullins’s arrest for “passing bad checks” but identified him as one of “Cleveland’s 25 Most Wanted Fugitives,”

offered an award for information leading to his arrest, and warned viewers against

attempting to apprehend Sullins themselves: “You leave that to the professionals” — as if

to suggest that Sullins was a case for the Cleveland Police Department’s SWAT team.7

{¶37} As the Montana Supreme Court aptly explained in Hale v. Billings, Montana

Police Dept.,

, 1999-MT-213,

(1999), use of the terms “most

wanted” and “fugitive” in describing a suspect have significant negative implications:

The term “most wanted” is offered for public consumption for a singular purpose: to warn that the person in question, above all other ordinary wanted persons, is the focus of intense scrutiny by law enforcement personnel, thus providing a clear connotation that the person has been identified as such based on undisclosed facts. * * *

Likewise, the term “fugitive” suggests but one urgent message to the intended hearer: the suspect has allegedly committed a crime, has eluded capture, and is now fleeing justice. * * * Once offered for public consumption, the term inherently connotes that police are in pursuit of the person, and that the person is, with knowledge of the pursuit, actively avoiding confrontation or capture by either fleeing or hiding. * * * Id. at ¶ 30-31.

{¶38} Whether a defamatory statement is substantially true is generally a question

of fact. Young v. Gannett Satellite Information Network,

(S.D.Ohio 2011), citing Sweitzer,

,

. In this

case, apart from excluding suspects with outstanding warrants for probation violations

7 We seriously question the identification of Sullins as one of “Cleveland’s 25 Most Wanted Fugitives.” If Sullins was one of “Cleveland’s 25 Most Wanted Fugitives” based on a charge of passing a bad check, Cleveland must be one of the safest communities in the country. and drug offenses and ensuring that the suspects were not all black males, no particular

methodology appears to have been used to identify those suspects with outstanding

warrants who would be featured as “Cleveland’s 25 Most Wanted Fugitives” on the

Warrant Unit program. Based upon the apparently random manner in which suspects

were selected for the program, we find that reasonable minds could conclude that Sullins

was not, under any “ordinary, plain-meaning definition” of the term, a “most wanted”

“fugitive” at the time the Warrant Unit program aired. See Hale,

,

1999-MT-213,

(trial court erred in entering summary judgment on

defamation claim arising from alleged defamatory depiction of plaintiff as a “fugitive”

who “may be armed and dangerous” on “Yellowstone County’s Most Wanted” cable

television program).

{¶39} Accordingly, we find that a genuine issue of material fact exists as to

whether appellees’ depiction of Sullins as one of “Cleveland’s 25 Most Wanted

Fugitives,” evading arrest on a present charge of passing multiple bad checks, was

“substantially true.” Therefore, appellees are not entitled to summary judgment based on

the substantial truth doctrine.

{¶40} Appellees also contend that they are entitled to summary judgment based on

the “incremental harm doctrine.” The incremental harm doctrine “measures the

incremental reputational harm inflicted by the challenged statements beyond the harm

imposed by the nonactionable remainder of the publication.” Ferreri v. Plain Dealer

Publishing Co.,

,

(8th Dist. 2001). Even if a statement is false, if the incremental harm caused by the false statement is determined

to be “nominal or nonexistent,” i.e., causes no more harm to the plaintiff than the truth,

the false statement is not actionable.

{¶41} Appellees contend that because numerous warrants had been issued for

Sullins’s arrest and because Sullins had already been convicted of one count of passing a

bad check, appellees’ representation in the Warrant Unit program that Sullins was wanted

on a present charge of evading arrest for passing multiple bad checks “could cause no

greater harm than the literal truth.” Sullins argues that because there were no

non-defamatory aspects of the statements at issue, i.e., appellees depicted him as a

“most-wanted” “fugitive” for “passing bad checks” and said nothing else about him,

appellees could not attribute any reputational injury to any non-defamatory aspects of the

statements, and that the incremental harm doctrine, therefore, does not apply.

{¶42} None of the cases cited by the parties involving the incremental harm

doctrine applied the doctrine to a statement that was determined to be defamatory per se.

We do not believe the incremental harm doctrine bars a claim for defamation, where, as

here, the plaintiff’s defamation claim is based on statements that are defamatory per se.

However, even if the incremental harm doctrine applied in this case, for the reasons

discussed above, it would involve issues of fact for the jury to decide. Accordingly,

appellees are not entitled to summary judgment based on the incremental harm doctrine.

Responsibility for Defamatory Depiction of Sullins {¶43} Finally, WOIO and Crime Stoppers argue that summary judgment was

properly entered as to them because they had little or no role in the production of the

Warrant Unit program. Although the narrator states at the outset of the program that the

Warrant Unit program “is a production of Cuyahoga County Crime Stoppers,” Crime

Stoppers maintains that it was nothing more than a “delivery person” who “owed Sullins

no duty of care.” WOIO similarly contends that it should have no liability for any

defamatory statements made on the Warrant Unit program because it simply broadcast

the program and had no role in creating, producing, or editing it. Based on our review of

the record and the applicable law, we find that there are genuine issues of material fact as

to who, if anyone, bears responsibility for the defamatory depiction of Sullins on the

Warrant Unit program. We, therefore, decline to affirm the trial court’s entry of

summary judgment on that basis.

{¶44} Based upon our independent review of the record, we find that there are

genuine issues of material fact as to whether appellees’ depiction of Sullins on the

Warrant Unit program constitutes actionable defamation. Accordingly, we reverse the

trial court’s entry of summary judgment on Sullins’s defamation claim, affirm the entry of

summary judgment on Sullins’s false-light invasion of privacy claim, and remand the case

to trial court for further proceedings consistent with this opinion.

{¶45} Judgment affirmed in part and reversed in part; remanded.

It is ordered that appellant recover from appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

____________________________________ KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and PATRICIA A. BLACKMON, J., CONCUR