The suit sprung from Mercure’s investigation into a local wedding videographer named Angela Terry who was accused of not fulfilling her promise of delivering completed videos to the couples who paid for her service within the promised 1o-12 weeks.
The investigation from the Milwaukee NBC affiliate reporter included a scuffle between the reporter and the defendant caught on camera, claims by Mercure that the defendant was “facing criminal charges” and Mercure calling Terry a “scammer” and a “cheat.”
The Wisconsin Bar Association has the court’s ruling:
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.”