Are You At Risk If Your DJ is Wrong?
As a follow up to the previous story, we thought it would be appropriate to ask broadcast attorney John Garziglia about the situation. If something similar happened to you, would you be at risk. Discussions, in the public domain, take place every day on talk radio and with public figures that seems to just go with the territory. But when a community figure is not public and information broadcast is not checked for facts, what liability do you have as a station manager or owner?
NOTE: Radio Ink and John Garziglia are not giving free legal advice here. If you have legal questions you should consult your own attorney.
Radio Ink asks: If your morning host is told by a caller a business owner was doing something wrong (like beating up kids) and the morning host goes on the air with that information, without fact checking, and turns out to be wrong, what liability does the station have? As a result of accusing the wrong person of doing something wrong (like beating kids) the wrongly accused received death threats and loss of business.
John Garziglia says: Wow! This story invites a checklist of what not to do.
Although the details of this incident are the subject of news stories, it is quite possible that the actual facts are different than that being reported. Therefore, the checklist below does not purport to specifically comment upon this actual incident but rather is a reminder of prudent practices for incendiary radio personalities to avoid slander which is a spoken defamation of character.
First of all, every radio personality should be required by his or her employer at the first hint of trouble over broadcast content to consult with management. Controversial and outspoken radio personalities will, by definition, provoke responses from their audience. But, responses that suggest that the personality got the facts wrong, or a listener is asking that a statement be retracted, should be an immediate concern of management. For management to be involved, management must be informed.
Second, there is a vast difference between political commentary, and commentary about private citizens and businesses. Our talk radio climate might suggest that there are no bounds to the types of abusive or inflammatory comments that can be made. That is simply incorrect. While the law gives wide latitude to political commentary about a public official or public figure, there is a far different liability standard for commentary about a private citizen or business.
Third, a radio personality should never state that someone committed a crime without that someone being found guilty in a court of law. Think about all of the news reports which go to great lengths to use the word “alleged”, even when reporting an arrest or other police action. To state on the air that someone committed acts that constitute a crime without an adjudication of guilt is an invitation to be sued.
Fourth, think about the economic damage that a false statement can do, particularly if the statement is about a business owner or a business. Statements that can cause economic damage to an individual or business are an invitation to be sued, even if the statements can otherwise be justified as opinion and not factual statements.
Fifth, a radio personality should avoid malice when referring to non-public figures or private businesses. It may be entertaining to disparagingly speak with a great amount of ill-will about a person who is believed to be bad or who is thought to have done bad things, but adding ill-will and umbrage to misstatements dramatically increases the chances of being successfully sued. Statements that expose a person to hatred, shame, disgrace, contempt or ridicule, injures a person’s reputation or causes the person to be shunned or avoided, or injures the person in his or her occupation, are all legally actionable.
And finally, keep in mind the source of the information that is being conveyed. Media law litigator John Kerr of my law firm observes that it is one thing to broadcast what is told by a proven source that has a proven track record for truth and veracity. Re-stating or allowing comments on the air from unknown or anonymous sources, however, is reckless conduct that can result in huge liability for a radio personality and his or her radio station. That is what keeps lawyers busy. Being sued, undergoing depositions, paying lawyers, paying large insurance deductibles, and possibly being liable for damages in an amount of money that would bankrupt you and the radio station, all take away from the pleasure of being a highly-regarded and highly-rated radio personality. Try not to be a radio personality that keeps lawyers busy.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or firstname.lastname@example.org. Have a question for our "Ask The Attorney" feature? Send to email@example.com.
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