Portnoy in February sued Insider and its chief executive, top editor and two correspondents — accusing them of “willful and unlawful defamation and privacy rights violations” over the publication of the stories.
Chief Judge F. Dennis Saylor IV granted Insider’s motion to dismiss the case, writing that Portnoy’s suit did not succeed in proving that Insider published the stories with “actual malice” or “reckless disregard for the truth,” the legal standard required to prove defamation of public figures in the United States.
Saylor determined that the complaint did not meet that standard because Portnoy “does not allege that Insider’s anonymous sources were fake, or that the articles misrepresented what the women told [Insider’s reporters]. Furthermore, plaintiff admits that Insider investigated its first article for months, requested an interview with him, sought his comment before publication, included his denials, and hyperlinked to his news conference and his lawyer’s full denial letter.”
Portnoy had alleged that the articles were “hit pieces” designed to ruin his reputation and goose Insider’s traffic figures. He also alleged that given that the women were not employees at Barstool, the Insider stories violated his privacy and had no legitimate public interest because they pertained to his private sex life. But Saylor wrote in his opinion that “Issues of consent and power imbalance in sexual relationships are very much matters of current public concern, and the legitimate public interest in those issues is not limited to matters that arise only in the employment context.”
As for whether the pieces were reckless, Saylor pointed out that Insider’s reporting “corroborated the women’s accounts with photographs, text and social media messages, videos, medical reports, police documents, an Uber receipt, and statements from at least three friends who saw or spoke with the women soon after their interactions with plaintiff.”
“Our reporting on Dave Portnoy was careful, fair, and accurate,” Insider’s spokesman, Mario Ruiz, said in an email. “We are pleased and gratified that the judge dismissed his complaint.”
A representative for Barstool did not immediately respond to a request for comment.
Late Monday, Portnoy posted a five-minute video on his social media accounts, again attacking Business Insider’s reporting and the high legal standard public figures must clear in order to win a defamation case. “Ain’t over, though,” he said about his legal battle, “but I don’t know where I’m going from here to be honest. The champagne bottles will remain on ice.”
In the first story, in November of last year, Insider correspondent Julia Black reported that three women had sexual encounters with Portnoy that “turned into frightening and humiliating experiences.” Two women told the outlet that Portnoy “choked and filmed them without advance permission.”
Portnoy denied that he sexually assaulted anyone or filmed anyone without their consent and quickly launched a months-long rhetorical war on Insider.com that included an emotional two-part video response attacking the article as a “hit piece” that he said bore no resemblance to reality.
Portnoy targeted Black, global editor in chief Nicholas Carlson, company CEO and co-founder Henry Blodget and even Axel Springer, the German media conglomerate that purchased the online publication in 2015. His counterattacks created outrage among Portnoy’s critics, but also energized his 2.7 million Twitter followers, many of whom created their own social media diatribes against Insider and its employees.
For a second article early this year, Black and senior features reporter Melkorka Licea published a follow-up article under the headline: “3 more women say Barstool Sports founder Dave Portnoy filmed them without asking during sex.”
In an editor’s note accompanying the second story, Carlson — who was named in the lawsuit — defended the news value of the two stories. “When a rich, famous, and powerful person uses their power in a way that is harmful to other people, it is newsworthy,” he wrote. “When such a person faces such accusations from credible sources and denies them — and then more accusers make new, credible accusations that corroborate and add detail to the alleged pattern of behavior, it is newsworthy.”
Portnoy filed his defamation suit after the second piece. The pair of Insider stories “have had a disastrous effect on Mr. Portnoy’s personal and professional reputation,” the suit claimed.
Portnoy also alleged that Insider timed the publication of the two articles about his personal conduct to hurt the stock value of PENN Entertainment, which owns 36 percent of Barstool Sports.
This story was updated to include Portnoy’s statements on social media late Monday.