Tom Cruise proves Risky Business for gossip mags

In late 2012, Life & Style and In Touch magazines published headlines indicating Tom Cruise had abandoned his daughter Suri. Most people might dismiss such articles as minority reports. However, Cruise has filed a Complaint in the District Court of California for defamation and invasion of privacy. He’s asking that the publisher of the magazines show him the money, to the tune of over US$50 million. Whether or not this is mission impossible for Cruise remains to be seen, but the case is attracting significant media attention due to an emerging discovery battle between the parties.

Filed on the Twenty Fourth of October

Like some of his better films, Cruise’s Complaint is entertaining. Unlike Australia, the U.S. allows a narrative complaint rather than a formal pleading, so the document is a cocktail of emotive language, claiming the magazines have “falsely trumpeted” “cruel and reckless statements” about him abandoning Suri, declaring “Enough is enough”.

The crux of Cruise’s claim is that the covers of the Life & Style and In Touch magazines featured Suri in various stages of distress, accompanied by headlines such as “ABANDONED BY DADDY”. Copies of the covers and letters of demand are annexed to the Complaint. The stories inside the magazines, however, revealed that the teary images were actually taken as Suri left a pet store. Another heart-wrenching headline was followed by a story which revealed that even though Cruise hadn’t seen his daughter in a long time due to a busy filming schedule, he spoke to her on the phone daily.

The pre-litigation correspondence had an angry and aggrieved tone, consistent with a father seeking to protect a young daughter whose image has been plastered across the cover of magazines at the supermarket checkout.

His lawyers wrote in their July 18, 2012 demand: “When he was shooting a film, he spoke with her regularly. He is with her as I write this letter. He was with her the day before your false and hurtful cover was issued.”

This was followed

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by a September 19, 2012 letter of demand which stated in part:

US Defamation Law – Cruise needs All the Right Moves

There is also a legal reason for such emotive language.

In Australia, whether or not a plaintiff has celebrity status is immaterial. To establish that the material complained of is defamatory, the plaintiff need only show that imputations have been published to a third party capable of causing ordinary, reasonable people to think less or him or her.

The United States, by contrast, has a public figure test. The constitutional protection of free speech in that country means that public figures must satisfy a much higher threshold than the ‘ordinary’ plaintiff before a court will order that adverse speech should be curtailed.

The need to prove ‘actual malice’ in addition to falsity or reckless disregard as to the truth, is demonstrable by the emotive quality of the Complaint and pre-action correspondence.

The following extract from the Complaint highlights how Cruise is seeking to prove that the publisher’s intent is to make money by exploiting headlines, irrespective of their truth or falsity:

Defendants place their magazines at supermarket checkout counters and in other stores and outlets throughout the country. These publications are placed so that millions of people each day must see their covers which feature screaming headlines in huge, brightly colored letters that are typically of a false, lurid and titillating nature, and that are often entirely unsupported by the stories buried in the magazines’ interiors. Defendants’ plan is to use these eye-catching headlines to cause people standing in checkout lines to buy their magazines. However, only a small percentage of people who see the covers of Defendants’ magazines actually buy the magazines and fewer still actually read the interior stories.”

A Few Good Men? The Toll of a Defamation Dispute

The difficulty for any plaintiff in a defamation dispute is that the matter complained of might be subject to a 24-hour news cycle, swiftly forgotten by

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readers the next day. However, the litigation can drag on for years, and become a very messy dispute about the truth or falsity of imputations which effectively puts the plaintiff’s conduct on trial. This predicament is apparent from the current Discovery requests being made by the parties of each other.

This predicament crosses geographical borders, and calls to mind a case in which we acted many years ago [Ed: I remember the case!]. In the 1990s, Jim Carrey sued the publisher of Woman’s Day magazine in Australia over an article headlined “Groper Jim” which implied he sexually harassed his actress co-workers. The publisher sought to plead an alternative imputation, namely, that “the plaintiff in his personal life is crude, lewd and disgusting” and that this imputation was true. The aim was then to put the plaintiff’s life on trial via cross-examination, using a range of extrinsic materials in support.

Eventually, Hedigan J, ordered that this aspect of the defence be struck out, observing:

“The headline to the article described the plaintiff as “Groper Jim” not “Crazy Jim”. The article was mainly concerned with three facets of the plaintiff’s behaviour – his behaviour towards actresses with whom he worked (Groper Jim), his personal life and behaviour with his then-wife Lauren Holly and his then public behaviour. It is really the last of these matters that drives the claimed defence imputation.”

Most celebrity defamation cases settle (as the Jim Carrey case eventually did). The stakes become very high if the case proceeds to trial. In the present case, it is plain Tom Cruise is seeking vindication. How far he is prepared to go to achieve this aim remains to be seen.