In a case that demonstrates that the Texas Citizens Participation Act (TCPA) does not give a free pass to media defendants whose programming defames a private person, the San Antonio Court of Appeals has affirmed a trial court order denying the defendants’ TCPA motion to dismiss plaintiff’s defamation claim.

Netflix, Inc. et al. v. Barina (No. 04-21-00327-CV) arose from a nasty dispute over the guardianship of successful San Antonio business owner Charles Thrash. When the elderly Thrash, who suffered from Alzheimer’s disease, became incapacitated, a probate court appointed his great-niece as guardian of the estate. Thrash’s “girlfriend,” together with her adult daughter and an attorney, challenged the guardianship. This challenge resulted in four previous San Antonio court of appeals’ decisions that affirmed the appointment of the guardian, annulled a fraudulent marriage between the incapacitated Thrash and the girlfriend, and upheld a sanctions order against the girlfriend and the lawyer for engaging in the fraudulent marriage scheme and in a bad faith effort to have Thrash adopt the girlfriend’s adult children. Not a very pretty picture, to say the least.

Despite this ugly history, Netflix decided to feature the Thrash guardianship on its program “Dirty Money–Guardians, Inc.” The documentary-style show purports to uncover abusive guardianships that exploit elderly and incapacitated people and steal their money. In the Thrash episode, the producers depicted the girlfriend and the lawyer as Thrash’s true defenders and the guardian as the exploiter. It also reported that the girlfriend was Thrash’s “common-law wife” and thus the rightful guardian, even though a court order had previously determined that this was not true. As a result of the program, the guardian received threatening hate mail. The guardian sued for defamation. Netflix raised TCPA defenses and moved to dismiss. The trial court denied the motion. Netflix appealed.

In an opinion by Justice Alvarez, the court of appeals affirmed. In order to prove defamation, plaintiff had the burden to establish a prima facie case of each element by clear and specific evidence, as required by the TCPA. The guardian met this burden by showing that the “gist” of the program was defamatory, in that it ignored the relevant legal history of the case, presented her side of the story in a distorted manner, and allowed the sanctioned girlfriend and attorney to pose as the truth-seekers. Thus, the broadcast was not substantially true and was actionable because “ taken as a whole [it was] more damaging to the plaintiff’s reputation than a truthful broadcast would have been” (citations omitted).

The burden then shifted to Netlix to establish affirmative defenses. It argued that the broadcast came under the fair comment privilege, the third-party allegation rule, and official proceedings recording. The court did not go for any of these. As there was no actual evidence that the guardian acted improperly, even though the gist of the program alleged that she did, the fair comment privilege did not apply. Similarly, the program failed to accurately portray Thrash’s case in probate court, defeating the official proceedings reporting privilege. Finally, Netlix argued that it merely reported the girlfriend’s and lawyer’s allegations. But, the court held, Netflix took the extra step of editing the allegations in such a way that the broadcast confirmed them. This disqualified Netflix from the protection of the third-party allegation rule.

“Where the documentary medium is the message,” the court concluded, “which viewers depend on for credible reporting, media outlets such as Netflix, Inc. enjoy freedom of speech and press, but they are ultimately responsible for delivering truth” (citations omitted). That certainly does not appear to have occurred in this case.

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