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Sometimes police or others will post an incorrect photo (or name) of a person and mistakenly identify them as a criminal suspect. For example, ATM video cameras do not sync transactions with the video, so it is easy for banks to get the wrong person's image when they review video from an ATM that was used for a criminal purpose.

So, in the case linked above the bank sent the photo of an innocent person to the police and told them that the person had deposited fraudulent checks. The police then posted the photo to Facebook and identified the person as wanted in a criminal investigation. Obviously this is damaging to a person's reputation, but is it actionable? Does the innocent person have a defamation case against the bank and/or the police?

  • Depends upon the jurisdiction involved. Certainly under some circumstances, but the requisite intent would vary based on the facts and jurisdiction involved. It might also be actionable as a negligent misrepresentation in addition to possibly (with stricter intent requirements) being actionable as defamation. – ohwilleke Aug 28 '19 at 22:23
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If the case were brought to a court alleging the facts as presented in the article, the case should be promptly dismissed.

Inaki Viggers' answer correctly notes that the bank's statements enjoy a qualified privilege against a lawsuit, and that the plaintiff would need to prove actual malice to overcome that privilege.

But his answer goes off the rails in applying the actual-malice standard, which requires that the defendant actually believed he was probably not telling the truth. Harte-Hanks Communs. v. Connaughton, 491 U.S. 657 (1989) ("The defendant must have made the false publication with a 'high degree of awareness of . . . probable falsity.'")

Whatever they might have done differently, there's nothing in the story that indicates anyone at the bank thought they had identified the wrong person.

Without a subjective belief that their statements were probably false, there is no actual malice. Without actual malice, there is no overcoming the qualified privilege. Without overcoming the privilege, there is no liability for defamation.

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  • Reckless disregard for truth or falsity also constitutes actual malice, and under defamation law, actual malice is only required for media defendants, public figures, and matters of public concern. Non-media defendants making statements about non-public figures on matters that are not of public concern are subject to a lower standard in the U.S., although as noted, qualified privilege for reports to law enforcement could still be protective and crimes are often matters of public concern. – ohwilleke Aug 28 '19 at 22:26
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Does the innocent person have a defamation case against the bank and/or the police?

The article is somewhat confusing and hard to grasp, but the pastor seemingly has a viable case at least against the bank. I am not knowledgeable of whether state police would have governmental immunity in NJ.

Under New Jersey law, "citizens have a qualified privilege to make statements to authorities for the prevention and detection of crime", Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 137 (1986).

According to the article you shared, the bank's employee

could not automatically link the check numbers to the pictures. But the lawsuit said she offered to hand-write check numbers on the photos of the man they determined had deposited the counterfeit checks — implicating Edwards.

My understanding of that excerpt is that the bank employee rushed to "fill the gaps" without conducting an investigation competently. The bank employee was aware of discrepancy of check numbers, which should have prompted the bank investigators/staff to do a better scrutiny.

Instead, notwithstanding the bank's awareness of that discrepancy, its employee(s) pointed fingers at the pastor, which sounds in reckless disregard of the falsity of the accusation(s) defaming the pastor. Proof of that might establish actual malice, thereby striking the qualified privilege the bank would otherwise have.

The pastor's claims of malicious prosecution would be viable as well if the false arrest eventually led a decision by the court. The article's mentions of "court date" and that "the criminal forgery charge against Edwards was dismissed" leave it unclear who dismissed the charge(s): the prosecutor or the judge.

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  • This answer misapplies the actual-malice standard. Neither a "rush to fill the gaps," nor an awareness of a discrepancy, nor the possibility of "better scrutiny" indicates actual malice. All of these point to negligence, not recklessness, and SCOTUS has explicitly rejected negligence and failure-to-investigate allegations as bases for establishing reckless disregard. Instead, there must be evidence that the defendant actually doubted the truth of his statements. There's no evidence of that here. – bdb484 Aug 28 '19 at 5:05
  • @bdb484 The SCOTUS actually stated that the purposeful avoidance of the truth supports a finding of actual malice. Harte-Hanks v. Connaughton, 491 U.S. 657, 692 (1989). The security employee's volunteering to hand-write check numbers that were unidentifiable is the product of "a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [...] charges", Id. To emphasize, that alleged volunteering was not by some random clerk/officer, but by the security team leader. Hence the recklessness. – Iñaki Viggers Aug 28 '19 at 12:10
  • Yes, you're making the same mistake again. In the Harte-Hanks context, purposefulness is a specific-intent requirement, not a general-intent requirement. There's no evidence -- that I can see, at least -- that the employee's intent was to avoid the truth. As with your personal lawsuits -- all of which were complete failures, as I understand it -- you are assuming malicious intent based simply on your disagreement with the outcome. That's your right, obviously, but it continues to infect your legal analysis. – bdb484 Aug 28 '19 at 13:41
  • @bdb484 "no evidence -- that I can see, at least -- that the employee's intent was to avoid the truth". Then you still fail to grasp the terms employed by the SCOTUS: "a deliberate decision not to acquire knowledge". Saying "I can't match the numbers but I can hand-write them for you" is a deliberate decision that no security team leader with a minimum sense of responsibility should ever make. As for your comment on my cases, let's see when yours get obstructed for being presided by a narco-felon whose debauched lecture in court is just about siding with "anybody who's powerful". – Iñaki Viggers Aug 28 '19 at 14:13
  • The deliberate decision not to acquire knowledge is only relevant if you've already established that the defendant disbelieved his statement, which is not the case here. You're getting hung up on whether the bank's decisions were ones it "should ever make," and that's where you keep going wrong. When you ask what a minimally responsible person should do, you are running a negligence analysis. A negligence analysis is always insufficient when applying the actual-malice standard. – bdb484 Aug 28 '19 at 14:45

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