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From Judge Edgardo Ramos’ decision on Tuesday Jacob v. Lorenz (SDNY) (The allegedly defamatory article appears to be just that here):

Plaintiffs Ariadna Jacob and her company, Influences, Inc., filed suit. This defamation lawsuit is against defendants Taylor Lorenz and The New York Times. Prosecutors allege that a New York Times article written by Lorenz included several defamatory statements about Jacob….

[T]The court granted in part and denied in part defendants’ motion to dismiss the Second Amended Complaint…on June 21, 2023. The court held that plaintiffs had made a sufficient claim with respect to a single statement in the article indicating that Jacob had leaked an individual’s data. Nude pictures. Defendants now move for reconsideration and ask the court to dismiss the remaining claim based on this statement…. [T]His motion was rejected….

[The] The only surviving statement — referred to here and in the court’s prior opinions as Statement 12 — concerns Jacob’s alleged distribution of nude photos of influencer Devion Young.

On August 11, 2020, Lorenz sent an email to Jacob and her team with a list of details she was “planning to report.” That list included the assertion that “Ms. Jacob distributed illicit images of Mr. Young to others (note: we have screen recordings showing these messages).” Jacob’s representative responded with a statement from Jacob’s attorney that said: “The illicit images of Mr. Young were brought to Ms. Jacob’s attention. While Influences was working on multiple business transactions with Mr. Young, Ms. Jacob reported the images to internal counsel [sic] Its existence, but at no time did it “publicly leak” the images, as Mr. Young claimed.”

The next day, Lorenz responded: “With regard to Mr. Young’s illicit images, Mr. Young does not allege that Ms. Jacob ‘leaked’ the images publicly. Rather, we have screen recordings that show that Ms. Jacob distributed these images to others via text message.” Would Ms. Jacob be interested in commenting, clarifying or responding to this?” Jacob’s lawyer responded: “Before responding to this point, could you please share the videos referenced here to ensure their accuracy and authenticity?” Lorenz stated that the material could not be shared. She reiterated that “Mr. And others claim that Mrs. Jacob privately [sic] He distributed illicit images of Mr. Young to others. No one is claiming she leaked it publicly.” Jacob’s representative referred Lorenz to the statement provided by Jacob’s attorney. In a final follow-up letter providing an updated list of allegations, Lorenz included the assertion: “Ms. “Jacob distributed nude photos of Devion Young privately via text message.” Jacob’s representative referred Lorenz back to Jacob’s attorney’s statement.

The article was published on August 14, 2020. Regarding Young’s photos, the article stated: “Just before we parted ways, she leaked my nude photos and sent them to business partners, people at my house, and potential investors to discredit me.” “My name,” Mr. Young said, saying I was unprofessional. “Ms. Jacob informed in-house counsel of the existence of the photo,” Ms. Jacob’s lawyer wrote, clarifying that she did not leak the photos “publicly.”

According to SAC, the article “alleged that Jacob leaked the photos to industry insiders for leverage because Young wanted to leave.” Prosecutors assert that this claim is “completely false, and the defendants know it.” The photos became public weeks before prosecutors and Young decided to split, so Jacob couldn’t have leaked them in retaliation. Prosecutors also state that at the time, Influences did not have “business partners” to whom Jacob could “leak” images. SAC acknowledges that Jacob reported the photos to an Influences employee and informed Young’s house manager of the situation. But plaintiffs claim that “[a]In no way did Jacob publish or “leak” the photos publicly.

[In the earlier decision, t]“The relevant prior correspondence shows that Lorenz doubted the truth of the assertion that Jacob had ‘leaked’ the images, and yet published the statement saying so,” the court explained. …

The defendants argue that reconsideration is warranted because “the court misinterpreted the record by failing to distinguish between Ms. Lorenz’s use of the phrase ‘leaked to the public’ and the unmodified term ‘leaked.'” According to Defendants, “the parties understood that the word ‘leak’ meant only ‘unauthorized disclosure.’” By contrast, the parties used the term “public leak” to mean “broader public disclosure.” Based on this alleged distinction, Defendants assert They find that the court “clearly erred in concluding that Ms. Lorenz understood the word ‘leak’ to be synonymous with ‘public leak’.”

These arguments are not convincing. As the court explained in its earlier opinion, Lorenz’s previously published letters distinguished between claims that Jacob “privately distributed” the photos and allegations that Jacob “publicly leaked” the photos. The communications revealed Lorenz’s understanding “that (1) ‘leaking’ implied sharing something with a broad audience rather than privately, and that (2) ‘no one’ is claiming that Jacob leaked Young’s photos.” Despite this understanding, the article included Jung’s statement that Jacob “I leaked the nudes and sent them “To business partners, people in my home, and potential investors.” As the court explained, this statement indicated that Jacob had leaked the photos. And Distribute them privately to business partners and others.

The distinction proposed by the defendants between “leaked” and “leaked to the public” does not change the court’s conclusion. First, the parties’ pre-publication correspondence does not indicate that Lorenz was drawing such a distinction. Lorenz repeatedly referred to allegations that Jacob “distributed illicit images of Mr. Young to others.” Lorenz also clarified to Jacob’s team that “Mr. Young is not alleging that Ms. Jacob publicly ‘leaked’ the photos.”

However, none of these statements support Defendants’ assertion that Lorenz understood “leak” to mean “any unauthorized disclosure of information.” In fact, Lorenz’s letters did not even use the term “leak” without the adjective “public.” It is difficult to see how the emails could show Lorenz’s understanding of the distinction between two terms when she used only one of them. As the case progresses, of course, the defendants will have the opportunity to present evidence proving that Lorenz understood the two phrases to have different meanings. But at this point, with all reasonable inferences drawn in favor of the plaintiffs, the court cannot conclude that Lorenz was relying on the distinction proposed by the defendants.

The court was also not persuaded by defendants’ argument that use of the term “leak” to refer to private sharing of information is “entirely consistent” with the language used in the decisions of the Supreme Court and the Second Circuit. Regardless of how courts use the term in opinions on unrelated topics such as insider trading or offshore movements, the question is how Lorenz They understood the term – as the defendants themselves admit. Again, based on the existing record, the court cannot say that Lorenz clearly understood that the terms “leaked” and “leaked to the public” had different meanings.

{Defendants’ summary of the response also refers to several cases that use the term “leak” to mean disclosure to an individual or small group. Again, these cases cannot prove Lorenz’s understanding of this term. But it is also inappropriate because it does not appear to include cases where the material disclosed is actually public. In this case, SAC asserts that the images had been circulating for weeks at the time Jacob allegedly distributed them.}

Finally, the defendants insist that Statement 12 “does not accuse Ms. Jacob of widely distributing images of Mr. Young to the public at large, but instead focuses on her admitted private disclosure.” This argument cannot be reconciled with the text of Statement 12, which stated that Jacob “dropped out.” [Young’s] Nudes And Send it to business partners, people in [Young’s] house and potential investors.” If the language before the “and” was deleted, this case might look different: The defendants could argue that the alleged distributions to business partners and others were consistent with the allegations Lorenz described in her pre-publication emails. But instead of Therefore, the article indicated that Jacob leaked the photos And Distribute it to others privately. This was inconsistent with Lorenz’s prior characterization of the allegations….

Note that the case turns on the question of the defendants’ knowledge or omission of the lies (so-called “actual malice”) because New York law requires it. For the court’s original June 21 decision, see here.

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