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The Million Dollar Album Cover

 A Texas wedding photographer, Andrea Polito, was awarded damages totaling $1.08 million dollars last week in a defamation lawsuit against two former clients, Andrew and Neely Moldovan.  The Dallas jury found the photographer’s former clients to have engaged in a malicious social media campaign to destroy Polito's reputation after the parties dispute over a $125.00 photograph album cover charge turned ugly.

 

According to the suit, the couple had engaged in a “smear campaign taken worldwide on many websites and different forms of media” and had later bragged that they were “pretty sure her business [was] done.”   

 

The Washington Post reported the days leading up to the lawsuit:

 

“I’m going apes‑‑‑ on our photographer,” Andrew Moldovan texted a friend on Jan. 12, 2015, according to transcripts Polito’s lawyer shared with The [Washington] Post. “We want our f‑‑‑ing wedding album, which we already paid for.”

 

“We are hoping that our story makes the news and completely ruins her business,” Neely Moldovan wrote to someone the same day, according to court records.

 

Polito knew nothing about this, she said, until her studio manager texted her a screenshot of Neely Moldovan’s latest Instagram post: “No big deal NBC in our apt.”

 

Although she declined to appear on camera, Polito sent the local NBC reporter a page-long email: about albums and album covers, contracts, schedules and “a-la-carte items” the Moldovans had yet to pay for.

 

Almost none of that email appeared in the station’s first January broadcast, which focused on the Moldovans, their empty picture frames and memories held “hostage,” as the reporter put it, over a $150 album cover fee, which he said “the contract doesn’t mention anything about.”

 

Then, the station released a follow-up report a few days later, with many more details and a story not nearly so simple.

 

The NBC affiliate described months of conversation between the Moldovans and the studio. The minimum cost of an album cover was actually $125, and a wedding expert who had blasted Polito in the station’s first segment was now defending her after learning more about the case.

 

But it didn’t make much difference. “The damage had already been done,” Polito told The Post.

 

The Moldovans’ story was picked up across the United States and overseas.

 

Meanwhile, court records show, Neely and Andrew Moldovan were busy on social media, advancing the “hostage” narrative.

 

“Blatantly steals money from you all while holding your pictures ransom,” a user named Andrew wrote in a review of the Moldovans’ wedding shoot. The couple told the NBC station that people were impersonating them online, although Polito’s lawyers would argue otherwise in court.

 

“She’s done this to over 22 brides that have come forward,” Neely Moldovan wrote, according to a screenshot shared by Polito’s lawyer.

 

And in another message: “Pretty sure her business is done.”

 

Avi Selk, The Washington Post.  According to Paragraph 29(l) of the Complaint, the Moldovans furthered the conspiracy to ruin Polito’s business when they:

 

 “’[L]iked’ numerous other defamatory per se statements posted by third parties, thereby ratifying and republishing those libelous statements.  These numerous statements by the Moldovans are nasty and reprehensible, including those that refer to Polito as a “scam artist,” that imply a death threat, and that accuss Polito of “g[iving] [the reviewer] AIDS.”  In several instances, Neely more than “liked” the posts, she also commented on them, acknowledging that she agreed with them and/or found them humorous.

 

Complaint at 29(l). 

 

The Dallas jury found that the social media posts made by the Moldovans against photographer Polito and her company, Andrea Polito Photography, Inc. amounted to defamation.  The case also raises two interesting and mostly unexplored questions of First Amendment and Defamation law, left unresolved by the jury’s $1.08 million dollar verdict:

 

1.  What legal responsibility, if any, does the NBC affiliate have for only presenting the Moldovan's side of the dispute initially, given that it was allegedly provided copies of the parties’ contract by Polito?

 

2.  Is a social media “like” of a third-party’s false statement a republication within the meaning of defamation law as alleged in this suit?

 

According to Polito’s lawyer, Dave Wishnew, an appeal of the verdict is likely.  It remains to be seen whether the appellate court will consider these novel issues on appeal.  In May of this year, a Swiss court ruled that the act of “liking” of defamatory content constituted a separate act of defamation.  Whether the American courts follow this expansion of the publication element remains to be seen. 

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