Should Asiana Sue KTVU-TV for Reporting Bogus Pilot Names?

Asiana WreckageAsiana Airlines announced today that it plans to sue a San Francisco television station for broadcasting incorrect and racially insensitive names of the pilots involved in the airplane crash earlier this month.

On Friday, KTVU-TV reported that the names of the pilots of the crash had been released, but the names read (and displayed) were bogus names that were akin to the names one might make up for a prank call.

According to the KTVU-TV report, the pilots were:

  • Captain Sum Ting Wong
  • Wi Tu Lo
  • Ho Lee Fuk
  • Bang Ding Ow

Surely upon reading these names aloud (let alone reading them critically), the anchor might have known something was amiss.

But does Asiana have the grounds to pursue a lawsuit?

The Legal Definition of Defamation

In general, a successful claim for defamation requires that the plaintiff prove:

  • The defendant made a false statement about the plaintiff.
  • The false statement was published to a third party who understood it.
  • The false statement was made with negligent disregard for the truth.
  • The false statement caused harm to the plaintiff.

When the plaintiff is a celebrity or public figure, the plaintiff must additionally prove that the statement was made with the intent to do harm or with reckless disregard for the truth (“with malice”). Asiana almost certainly falls within the class of plaintiffs that must prove malice to succeed on a defamation claim.

Asiana would likely run into issues proving the third and fourth elements here, and possibly the second as well.

Negligent or Reckless Disregard for the Truth; Malice

For the third element—that KTVU-TV acted with malice, or reckless disregard for the truth, Asiana would probably argue that a reasonable person reviewing the purported names of the pilots would have recognized them as being bogus. However, even if it could successfully make that claim, it shows only that KTVU-TV’s action was negligent. Proving the heightened culpability of malice or recklessness would be substantially more difficult. The fact that KTVU-TV reportedly confirmed the accuracy with the names with the National Transportation Safety Board (NTSB) will likely preclude a finding that KTVU-TV acted with a reckless disregard for the truth.

Injury or Harm

As to the fourth element, Asiana would run into serious difficulties proving that it suffered harm as a result of the false statement. Any decrease in business around the time of KTVU-TV’s announcement will nearly impossible to distinguish from the loss in business as the result of the plane crash itself.

In some situations, injury may be presumed based on the type of false statement—these types of statements are known as defamation per se. A statement disparaging the fitness to carry on a business or trade is the only type of statement considered to be defamation per se that is even remotely applicable here, and the misreporting of pilot names (regardless of how ridiculous the incorrectly reported names are) can hardly constitute disparagement of Asiana’s fitness to do business. Thus, defamation per se likely does not apply in this situation, nor will Asiana be able to prove that its business or reputation suffered as a result.

Published to an Understanding Third Party

Even the second element—that the false statement was published to a third party who understood it—will probably fail. While third parties (viewers of the television broadcast) may have understood the report, most listeners would almost immediately perceive it as a prank. Although the presence of humor alone does not preclude a successful defamation action, a statement so nonsensical that no reasonable person could believe it to be true most likely cannot constitute defamation.

In sum, despite KTVU-TV’s erroneous reporting and arguable racial insensitivity, Asiana likely cannot succeed on a defamation claim against the television station. The airline would be better served spending its resources on repairing its reputation in the aftermath of a fatal plane crash and letting the silliness of KTVU-TV’s mistake be punishment enough for its irresponsible reporting.

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