After an Asiana Airlines passenger jet crashed and burned at San Francisco International Airport on July 6, 2013, a Bay Area TV station published what it claims were the names of the pilots, including Captain Sum Ting Wong, Wi Tu Low, Ho Lee Fuk, and Band Ding Ow. Unbelievably, as shown below, no one at KTVU-TV picked up on the joke and the anchor read the names in all seriousness. It turns out that a summer intern with the National Transportation Safety Board was the culprit in passing along the names. Now, Asiana is suing the station for injury to its reputation, a novel claim that could raise questions over not just the fact of injury but the degree of injury in such a prank.
The crash of Asiana Airlines Flight 214 resulting in the deaths of three and injuring dozens. However, the lawsuit does not raise pain or suffering from the prank to the pilots or their families but rather loss of reputation to the airline. Since the news programs were streaming images of a burned out plane with the company’s logo, it is hard to see how the prank was a major source of reputational loss. A lawsuit against the NTSB is reportedly also being contemplated.
The station insists that it confirmed the names from the NTSB and merely aired the official report. That fact that it did not get the obvious joke clearly shows a humor-impaired staff. However, the embarrassment factor actually helps the station. They clearly did not want to fall for a prank but this was not a case where a faux NTSB employee fed the false information to the station. It received information from an agency and aired the information. The case comes down to negligence in being humor-impaired or a type of chump tort. Is a station expected to look at information from an agency and screen it for a possible prank from your government?
The agency admits that the intern gave its information to that station and promised that “we are reviewing our policies and procedures to determine where we might be able to strengthen them so that this kind of situation doesn’t happen again.”
The station did offer an apology on the air that contained statements of negligence that might be cited in the lawsuit. The station said that it failed to confirm the position of the person and departed from its usual practices. That is a concession that is likely to be repeated in the lawsuit.
It is not clear if the intern was the prankster or merely passed along an insensitive joke unwittingly. However, some reports state that the intern simply did not get the joke –any more than the television staff spotted it.
The agency says that the intern is no longer in its employ.
There is obviously negligence at both the agency and station, but did the prank actually lower the reputation of the airline beyond the devastating loss of reputation due to the crash? After all, many probably were as clueless as the anchor in hearing the names. Moreover, the prank was quickly discovered. Finally, these are racially insensitive remarks directly at the pilots. It would seem that they would have the better claim and even that claim could be subject to the many of the same questions.
Generally “disparagement” lawsuits deal with agricultural products as with the lawsuit against Oprah by the beef people. California allows for lawsuit by businesses for economic losses due to false and disparaging statements. However, the company must show not only that the statements was false (easy here) but that that the defendant’s libelous or slanderous statements caused monetary damage to the business. Specific damages must be shown. See 4 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 27:99 (4th ed. 2004) (defining elements of common law product disparagement as (1) publication, (2) of a false and disparaging statement of fact about the product of plaintiff, (3) made with either knowledge of falsity or with reckless disregard of its truth or falsity, (4) with intent to harm plaintiff’s interest, and (5) specific damages). Special damages require a showing that disparaging statements were a substantial factor in causing specific injury to plaintiff. Ira Green, Inc. v. J.L. Darling, Corp., 2012 U.S. Dist. LEXIS 145496 citing 42 A.L.R. 4th 318 § 13 (1985); Restatement (First) of Torts § 632 (1938).
Absent an allegation of fraud or dishonesty for a per se business defamation claim, the airline would need to show a loss of business due to this brief publication of names. The vast majority of coverage was exposing or laughing at the prank rather than repeating the names as true and correct.
Do you believe such a chump tort can be maintained?