On The Matter Of Slander


Seven second delay up and running? Check. Call screener in place? Check. Errors and omissions insurance premium paid? Check. Call finally coming in from Shane Spencer, former New York Yankees outfielder? Check.

What? After the interview is broadcast, someone claiming to be the real Shane Spencer is now on the line? Oops!

The public’s predictable reaction to all of this, since radio station air personalities themselves perpetrate hoax after hoax on unsuspecting individuals, is a yawn and a laugh. But there is a chance that a letter from Mr. Spencer’s lawyer will follow. So, is there any civil or FCC liability, or criminal culpability, to the radio station, its personnel, or the prankster, here?

It is worth observing that mistakes happen all the time on broadcast stations. That is the reason for errors and omissions insurance. And recently, hoaxes have seemed to get the better of broadcast media personalities in, for instance, the recent San Francisco Asiana pilots’ names hoax . Or, to put the Asiana pilots’ names hoax in the perspective of one of radio’s greats, Rush Limbaugh: “Ah, it reminded me of some of my greats, some of the things that I have done in my earlier broadcast career.”

But, back to the consequences of these errors — what is a station’s liability for mistakes? As with most such legal and FCC questions, it depends.

Did the broadcast station knowingly or recklessly put false information on the air? Was the allegedly defamed person a public figure? Is there a retraction statute in the particular state and did the station comply with that retraction statute?

Mr. Spencer may assert that the station committed a tort against him and try to recover damages based on the station’s negligence or recklessness in putting damaging falsehoods on the air. Ted Claypoole, my law firm partner whose focus is on information management, observes that: “Nobody is perfect, but not all mistakes will cost a station money. The more that station personnel do to check sources and the more safeguards that are in place to avoid being fooled, the smaller a chance of losing a tort case for broadcasting a hoax. Simply put, radio stations should behave reasonably and be able to document its protections against error.” (Ted is co-author of the book “Protecting Your Internet Identity: Are You Naked Online?”)

In this particular case, it is likely that the broadcast station, if accused of defamation for the broadcast of false information about Shane Spencer, can claim that Mr. Spencer is a public figure. After all, the broadcast station had previously communicated with Mr. Spencer for the purpose of doing an interview because of Mr. Spencer’s presumed status as a sports star.

Assuming that Mr. Spencer is a public figure, then a lawsuit for defamation must show by clear and convincing evidence that the radio station acted with actual malice, with “actual malice” being defined as station personnel knew that a statement was false, or acted in reckless disregard as to whether a statement was true or false. To show such clear and convincing evidence with the facts as are now known would be difficult, at best.

Some articles on this hoax have suggested that there is criminal liability involved. The hoaxer himself might possibly have some criminal liability for impersonating another, or for fraud for assuming another’s identity. But, unless the radio station’s personnel were knowingly complicit in the scheme, it is unlikely that either the radio station or its personnel have any criminal culpability.

The FCC’s rules and policies are pretty clear that incidents such as the Shane Spencer hoax, assuming what is reported about the station’s non-participation in the hoax is true, does not present any FCC liability to the station or its license. The FCC states on its website  that:“[a]s public trustees, broadcasters may not intentionally distort the news. Broadcasters are responsible for deciding what their stations present to the public, and the FCC has stated publicly that ‘rigging or slanting the news is a most heinous act against the public interest.’ The FCC may act to protect the public interest when it has received documented evidence of such rigging or slanting. This kind of evidence could include testimony, in writing or otherwise, from ‘insiders’ or persons who have direct personal knowledge of an intentional falsification of the news. Of particular concern would be evidence about orders from station management to falsify the news. Without such documented evidence, the FCC generally cannot intervene.” As the station and its personnel were the victims, not the perpetrators, it does not appear that an FCC violation occurred.

The Shane Spencer hoax is to be contrasted with “fake news” that the FCC does take action against. That kind of “fake news” lately involves news stories presented as journalistic endeavors of the broadcast station when the produced stories were actually given to the station by persons or entities that had an interest in what was being stated. In two 2011 cases against TV stations, the FCC warned that broadcast stations cannot broadcast commercial pitches disguised as news unless the sponsors are clearly labeled with sponsorship identification announcements.

It is difficult to surmise what the radio station could have done differently here with the call from the fake Shane Spencer. I am one of the rare people who actually grew up in Washington, DC. I remember being told as a young adult that, if the White House called, the proper procedure was to know the number of the White House switchboard (202-456-1111), and to call back to confirm prior to engaging in the conversation. Well, I can report that was a bit of knowledge I never needed. But the lesson for all broadcast stations is the same – confirm that the telephone call is real before going to air with it.



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