## Facts

- Van-Go provided transportation services for severely disabled pupils under a Board of Education contract beginning in 1988 and extended through June 30, 1996.
- Sterling and Celebrity later sought additional Board contracts.
- The Board declined to award contracts and stated the denial was based on concerns about possible criminal activity, including offering gratuities to public officials.
- New York City required vendors bidding on certain public contracts to complete a standardized questionnaire in the City’s computerized procurement system, Vendex.
- The Vendex questionnaire required disclosure of prior investigations or contract denials and the stated reasons.
- To submit bids, Celebrity and the individual principals were required to enter into Vendex that earlier proposals were denied due to the Board’s gratuity allegations.
- Vendex stored and disseminated the entered information across City agencies for future contracting decisions.
- Plaintiffs alleged the gratuity accusations were false and that Vendex dissemination harmed reputations and contracting opportunities.

## Issues

1. Whether “consent to publication” bars a defamation claim when the plaintiff had no realistic alternative but to enter the alleged defamatory matter into a government procurement system as a condition of bidding.
2. Whether the plaintiffs’ Vendex entry constitutes nonactionable self-publication or actionable compelled self-publication attributable to the defendants.

## Decision

- The court denied the Board’s motion for summary judgment on the defamation claim.
- The court held the consent defense did not apply where “consent” was effectively compelled by the requirement to submit Vendex disclosures to compete for City contracts.
- The court concluded a defamation action may lie where the defendant’s conduct foreseeably results in the plaintiff’s compelled self-publication.
- The court found triable issues concerning falsity, foreseeability of republication through Vendex, and whether plaintiffs had any realistic alternative to disclosure.

## Legal Principles

- Consent is a complete defense to defamation only when consent to publication is meaningfully voluntary; compelled disclosure does not constitute voluntary consent.
- Self-publication does not bar recovery where publication is compelled and the defendant could foresee the plaintiff would be required to repeat the defamatory statement.
- Compelled self-publication requires proof of (1) compulsion to republish and (2) foreseeability that the plaintiff would be forced to do so.
- At summary judgment, where evidence could support falsity and compelled, foreseeable republication, the claim is not barred as a matter of law.

## Conclusion

The court allowed the defamation claim to proceed, holding that a vendor’s required Vendex disclosure of a government agency’s allegedly false accusations is not voluntary consent and can constitute actionable compelled self-publication when compelled and foreseeable.


Van-Go Transport Co., Inc. v. N.Y.C. Bd. of Educ., 971 F. Supp. 90 (E.D.N.Y. 1997)