Case 0:17-cv-60426-UU Document 169 Entered on FLSD Docket 06/04/2018 Page 13 of 22 investigation into allegations of employee misconduct); Farrell v. N.Y. Evening Post, Inc., 167 Misc. 412, 3 N.Y.S.2d 1018 (Sup.Ct.1938) (internal governmental investigation of the Civil Works Administration). The test is whether the “report concerns actions taken by a person officially empowered to do so.” Freeze Right, 101 A.D.2d at 182 (internal quotation marks omitted) (“The report is protected as long as it concerns activities which are within the prescribed duties of a public body.”). There are, however, two important limitations on this privilege. First, there must be more than a mere “overlap” between the subject matter of the report and the subject matter of the proceeding; “the ordinary viewer or reader must be able to determine from the publication itself that the publication is reporting on a proceeding.” Fine, 11 F. Supp. 3d at 216; see also Wenz v. Becker, 948 F. Supp. 319, 323 (S.D.N.Y. 1996) (“If the context in which the statements are made make[s] it impossible for the ordinary viewer to determine whether defendant was reporting [on a proceeding], the absolute statutory privilege does not attach.”) (internal quotations omitted); Corp. Training Unlimited, Inc. v. Nat’l Broad. Co., 868 F. Supp. 501, 509 (E.D.N.Y. 1994) (ruling that the privilege did not apply where “[t]he ordinary viewer . . . would not have been under the impression that he was being presented with the report of the . . . proceedings.”); Cholowsky v. Civiletti, 69 A.D.3d 110, 114, 887 N.Y.S.2d 592, 596 (2009) (“If the publication does not purport to comment on a judicial proceeding, Civil Rights Law § 74 is inapplicable.”). This is to insure that the reader can ascertain that what is reported as true is that there is an official proceeding underway or official action being taken regarding the allegedly defamatory matter—not that the allegedly defamatory statements are true. El Greco Leather Prod. Co. v. Shoe World, Inc., 623 F. Supp. 1038, 1043–44 (E.D.N.Y. 1985), aff’d, 806 F.2d 392 (2d Cir. 1986) (applying the privilege to protect allegedly defamatory summary of pleadings in a pending 13