Saturday, March 10, 2007

An Insight on defamation

In the course of handling the libel case faced by my Tito Peter, let me just rattle off some of the insights that I have gained.
I wrote in my blog that my uncle was included as a respondent in a criminal libel case in his capacity as the general manager of the radio station where a radio bloc timer allegedly hurled libelous statements on the air.
Let it be emphasized that the libelous statements that became the basis of a libel complaint were aired on a political bloc time program.
The nature of a bloc time is such that the manager of the radio station, does not have as much control over it contents, as compared to a program under the direction of the radio station.
In a bloc time, an individual or entity buys airtime, like for an hour, or thirty minutes.
The nature of radio, and radio commentary is such that the management of the station does not have the luxury of time to check, verify, evaluate the statements that are uttered by the bloc time broadcaster.
The complainant in the libel case before the prosecutors office is an elected public official, a municipal councilor.
There are certain questions that emerged in my mind.
First, since the management, or the radio station manager is included as respondent in a libel complaint, and considering this is a bloc time program, should it be necesary for the complainant to prove actual malice not only on the part of the bloc timer, but also of the radio station manager?
In other words, should it be required of the complainant to prove that my uncle had actual malice in his being responsible for the airing of libelous staements in a bloc time program?
I believe so.
I belive that theoretically, the prosecution is required to prove that in allowing the supposed libelous defamatory statements to be aired through a bloc time program, the station manager had actual malice, separate and distinct from the requirement of proving actual malice on the part of the actual bloc time speaker.
What is my basis for this?
I think it is proper to review the 1964 New York Times Co. versus Sullivan ruling of the United States Supreme Court.
We can use the New York Times decision as basis for an analogy.
We recall that in the New York Times ruling, it involved allegedly libelous writings in a full page advertisement published in the New York Times.
I am trying to inject similarities between a full-page advertisement with a radio bloc time. The similiarity is that a full-page ad and a bloc time are "spaces" paid for by third parties.
In the New York Times ruling, the public official, L.B. Sullivan who was the complainant, sued both the persons behind the ad, and the New York Times Company as well.
In similar manner, the complainant in my uncle's case sued both the utterer or broadcaster, and the station manager representating the broadcast management.
Again, I am trying to inject similarities here between the New York Times and the radio station of my uncle, in that both were vehicles for the "publication" of the allegedly libelous remarks.
What did the U.S. Supreme Court do in the New York Times ruling?
The Supreme Court proceeded to determine whether or not the New York Times newspaper, in allowing the publication of the full page ad containing allegedl libelous writings, had actual malice in so allowing the publication.
I would like to refer to 376 U.S. 254 286-288 of the New York Times decision.

"As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times' Secretary that, apart from the padlocking allegation, he thought the advertisement was "substantially correct," affords no constitutional warrant for the Alabama Supreme Court's conclusion that it was a "cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable therefrom." The statement does not indicate malice at the time of the publication; even if the advertisement was not "substantially correct" - although respondent's own proofs tend to show that it was - that opinion was at least a reasonable one, and there was no evidence to impeach the witness' good faith in holding it...

Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement.

With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized.

There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of a personal character"; their failure to reject it on this ground was not unreasonable. We think
the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice"

What is clear is that in the New York Times ruling, the Supreme Court made a (separate) determination of whether or not there was actual malice on the part of the New York Times newspaper, separate and distinct from the determination of actual malice of the persons responsible for the advertisement.
Applying this procedure to my uncle, I think that in the complaint affidavit itself, there should already be an allegation that the radio station manager had actual malice in allowing the broadcast of alleged liblelous remarks in the bloc time program.
Further, there should be a specific allegation in the comlplaint as to how there was actual malice on the part of the radio station manager.
In the absence of such allegations, I think the complaint is dismissible in the preliminary investigation stage.
In conclusion, let me just state that the stark contrast between the situation in the New York Times ruling and that of my uncle and his radio station is that in the former, it is a print publication. In the latter was broadcast (radio station).
What is the significance of this distinction?
In print publication, like the publication of a full page ad, there was time for a review of the contents of the ad before it was printed, published, and circulated.
In broadcast, specially in commentaries of current events and those of a political nature, there cannot be a pre-broadcast review (by my uncle as the station manager) of what is to be uttered. Otherwise, this would constitute illegal censorship or prior restraint.
Having said this, it would be reasonable to say that, with more reason should the radio station manager be given greater degree of insulation from libel charges when these charges pertain to the allowance of political statements or materials to be aired.
This is because in radio, there is no pre-boroadcast review of contents of the materials to be broadcast, much less censorship or prior restraint.

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