Aboutaam v. Dow Jones & Co.

2019 NY Slip Op 30747(U)

HICHAM ABOUTAAM Plaintiff, v. DOW JONES & COMPANY, Defendant.

INDEX NO. 156399/2017

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 29EFM

RECEIVED: March 26, 2019

March 22, 2019

NYSCEF DOC. NO. 103

PRESENT: HON. ROBERT D. KALISH Justice

MOTION DATE 10/30/2018

MOTION SEQ. NO. 004

DECISION AND ORDER

The following e-filed documents, listed by NYSCEF document number (Motion 004) 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101 were read on this motion to/for DISMISS.

Motion by Defendant Dow Jones & Company, pursuant to CPLR 3211 (a)(1) and (7), to dismiss the amended complaint ("the complaint"), alleging causes of action for libel and defamation by implication, is granted for the reasons stated herein.

BACKGROUND

I. The Parties

According to the complaint, Plaintiff Hicham Aboutaam and his brother non-party Ali Aboutaam ("Ali") are internationally prominent art and antiquities dealers. Plaintiff is the owner and president of "Electrum, a Manhattan-based antiquities gallery and brokerage." (Am. Comp. ¶ 9.) Since March 2002 Electrum has served as the exclusive U.S. agent for Phoenix Ancient Art ("Phoenix"), a Geneva, Switzerland-based antiquities gallery wholly owned and operated by Plaintiff's brother Ali Aboutaam ("Ali").

Defendant Dow Jones is the publisher of the Wall Street Journal ("WSJ" or "the Journal").

II. The Subject Article

The instant action for libel and defamation by implication arises from an article published in the Wall Street Journal that first appeared online on May 31, 2017 with the headline stating "Prominent Art Family Entangled in Investigations of Looted Antiquities" and the sub-headline stating "Long-time dealers Ali and Hicham Aboutaam are under scrutiny as authorities in multiple countries look into how Islamic State finances itself by trafficking in ancient objects." (Am. Compl. ¶ 44.)¹ The authors are listed as Benoit Faucon and Georgi Kantchev. The article contains the following photographs, each separated by several paragraphs, in the following order:

• A photograph of Plaintiff and his brother Ali with two marble statues behind them.

• A photograph of the exterior of "[t]he Aboutaams' Phoenix Art gallery in Geneva." (Online Article [caption].)

• A photograph of a "gold ring with a carved gemstone ... believed to be from the Hellenistic/Roman period, dating approximately from 330 B.C.to 400 AD. The photo was seized in a raid on the home of a top Islamic State official in Syria in 2015." (Id. [caption].)

• A photograph of a "Roman amphitheater in the ancient city of Palmyra in central Syria [that] was badly damaged during ISIS occupation." (Id. [caption].)

• Photographs depicting both sides of "a gold coin featuring Antoninus Pius, believed to date to approximately 138-161 A.D., ... discovered during a raid on a top Islamic State official's house in Syria in 2015. The object is one of several subject to a civil-forfeiture proceeding in the U.S." (Id. [caption].)

According to the complaint, this online headline was later changed to "Prominent Art Family Entangled in ISIS Antiquities-Looting Investigations." (Am. Compl. ¶ 45.)

The same article then appeared in the WSJ print edition on June 1, 2017 on the front page of the "Life & Arts section with the headline "Antiquities Dealers Probed" and the sub-headline "Ali and Hicham Aboutaam are under scrutiny asauthorities in multiple countries look into looting by Islamic State."² The same authors are listed and the text of the article appears to be reproduced verbatim from the online article. With the exception of the photograph depicting the exterior of the Phoenix Gallery in Geneva, the same photographs appear in the print edition. However, the photographs of the gold ring and Roman ruins appear on the first page abutting the picture of the Aboutaam brothers—the photograph of the coin appears on the second page.

In sum and substance, the article reports that Plaintiff, his brother non-party Ali Aboutam, and others involved in their family businesses are being investigated by law enforcement in multiple countries for potentially trading in antiquities that may have been looted by ISIS (which stands for Islamic State of Iraq and Syria). The article also discusses—more generally—how law enforcement is seeking to learn more about "one of the art world's best-kept secrets: how ancient objects plundered in the battle zones of the Middle East end up in posh art collections thousands of miles away." (Online Article at 1 of 6.) In the context of the latter, no art dealers are identified as being under investigation other than Plaintiff and his brother.

III. The Complaint

The complaint alleges libel as a first cause of action and defamation by implication as a second cause of action. Plaintiff alleges that a reporter from the WSJ contacted Phoenix Ancient Art ("Phoenix")—Plaintiff's brother's Geneva gallery—on January 31, 2017 and stated that he was "'writing a news article on trading of artifacts looted by ISIS'" and anticipated that the article would mention "'scrutiny over your operations and whether artifacts looted under ISIS's watch could have ended up in your hands.'" (Am. Compl. ¶ 13.) The Complaint alleges that Plaintiff, his brother, and others at Phoenix spent months attempting to correct what they believed to be the reporter's "misconceptions, misunderstandings, and incorrect assumptions." (Am. Compl. ¶ 5.) Plaintiff alleges that notwithstanding said efforts, Defendant printed an article that—"though it revealed no links between Plaintiff and any antiquities that were bought or sold to support ISIS"—causes the reasonable reader to believe that he is in fact trading ISIS-looted antiquities and thereby funding ISIS. (Id.)

Plaintiff attaches a survey to his complaint as Exhibit A, which, in sum and substance, purports to show that roughly 400 WSJ subscribers harbor various negative beliefs about Plaintiff and his brother after having read the article, such as that they are: "dishonest," "less trustworthy," "running a criminal enterprise," "helping to finance ISIS through the sale of looted antiquities," "involved in looting or stealing antiquities in the Middle East," "have connections with ISIS," "have done business with ISIS," and "financing terrorism."

The complaint alleges various statements in the article that it claims give rise to libel claims and to defamation by implication claims, and this Court will examine each of these specific statements in turn in the "Discussion" section.

The complaint alleges that Plaintiff's "business and reputation have been severely and immediately damaged" and that customers and "major antiquities institutions have withdrawn from ongoing, immediately profitable and long-standing relationships with Plaintiff." (Am. Compl. ¶ 7.) At oral argument, Plaintiff's counsel stated that sales at Plaintiff's gallery have declined by over 96 percent since the publication of the article. (Oral Arg. Tr. at 26:13-25.)

ARGUMENTS

Defendant Dow Jones & Co. moves to dismiss the complaint, pursuant to CPLR 3211 (a) (1) and (7). Defendant first argues that Plaintiff's claim for libel must be dismissed because Plaintiff fails to plead that the subject article's reporting regarding various investigations into Plaintiff's family business was "materially false" and therefore does not give rise to a cause of action for libel. Defendant argues that, on this point, Plaintiff does not deny the existence of the Belgian, French and Swiss investigations into his family business. Defendant further argues that the statements about the detentions of Ali's wife and driver and the statements about Ali's Egyptian conviction (in absentia) are "substantially" and "concededly" true and that these statements are not "of and concerning" Plaintiff, and, therefore are not actionable.

Defendant further argues that the second cause of action for defamation by implication should be dismissed because Plaintiff fails to make a "rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference." (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 37-38 [1st Dept 2014].)

Lastly, Defendant argues that Plaintiff is a limited purpose public figure, and as such Plaintiff must allege facts sufficient to show that Defendant acted with actual malice when it published the subject article. Defendant argues that Plaintiff has failed to allege sufficient facts to establish Defendant's actual malice.

In opposition to the instant motion, Plaintiff first argues that the libel claim should not be dismissed. Plaintiff argues that while he does not dispute the existence of some of the investigations, he disputes various details about things that have occurred within the investigations. In addition, Plaintiff alleges that he does in fact plead that the statement that he is being investigated by the U.S. Immigration and Customs Enforcement ("ICE") "in connection with the trade in ISIS-looted antiquities" is false. (See Am. Compl. ¶ 108 [c].)

Plaintiff further argues that the statements concerning Ali's Egyptian conviction and the detentions of Ali's wife and driver give rise to claims for libel. Plaintiff argues that while the detentions and conviction did happen, Defendant misstated or omitted various important details about these events that make the statements materially false. Plaintiff further argues that these statements are "of and concerning him."

Plaintiff further argues that the claim for defamation by implication cannot be dismissed. Plaintiff argues that the submission of his survey—showing various negative opinions WJS subscribers have of him after reading the article—demonstrates that there is at least a material issue of fact that the article is defamatory by implication. Plaintiff further argues that the article's...