(CN) - A Virginia accountant cannot sue a local news station for mentioning him in a segment about "unscrupulous" tax preparation firms because the word was a "wholly subjective comment," and referred to "tax preparers as a class," a federal judge ruled.
Reliable Tax president Timothy Hanks sued Wavy Broadcasting and its parent company, Lin Television Corp., over an April 2011 newscast. WAVY-TV 10 is the NBC affiliate for the Norfolk-Virginia Beach metropolitan area.
Previews for the newscast stated: "Stay turned and we are going to show you how to avoid unscrupulous tax preparers. Monday, April 18th, is this year's federal income tax filing deadline. But if you're one of the many who have waited until the last minute to file, you could run the risk of working with unscrupulous preparers," the preview continued. An article posted on Wavy's website used the same language.
Reliable Tax's client Kenneth Brown appeared in the segment, claiming that Reliable Tax mistakenly indicated he would get a bigger refund than he actually received. Unlike the previews, however, "the newscast video segment referenced in the complaint and posted along with the article does not use the language 'you could run the risk of working with unscrupulous tax preparers.' Indeed, the word unscrupulous is not used once," the court noted.
Although he was never named personally, Hanks said that the broadcast in context painted him as an "unscrupulous tax preparer" who had unlawfully converted customers' income tax refund payments, or unlawfully withheld payments owed to customers, or fraudulently filed false tax returns for customers.
His lawsuit alleged per-se libel because the coverage allegedly imputed "an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal offense," according to the court's summary of Hanks' claims.
U.S. District Judge Robert Doumar dismissed the case last week, finding that "the word unscrupulous, as it was used, was a broad, unfocused, and wholly subjective comment."
"Even if the average viewer would conclude that these publications portrayed the plaintiff as a less than honest or unscrupulous tax preparer, however, the court concludes that this portrayal constitutes protected opinion," Doumar wrote.
"In this case, even considering the inferences of the statements taken in context, no reading of the allegedly defamatory statements can demonstrate that the publication was intended to refer to plaintiff and would be so understood by persons reading it who knew him," he added. "The facts as laid out in the complaint are quite clear. The newscast previews stated that they were going to show viewers how to avoid unscrupulous tax preparers. These previews cannot be read to refer to plaintiff in any way. Rather, they refer to tax preparers as a class."
Furthermore, "It is clear from the publications in this case that Reliable Tax gave Mr. Brown the money it was required to by law. It was Mr. Brown's opinion that he should have gotten a refund based on the mistake made by his preparer - a mistake Reliable Tax's owner readily acknowledges and admits was made. Thus, the article and newscast, taken in context of the previews, merely relay the story of a tax preparer's mistake -as the title of the article so clearly indicates."
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