First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Monday, July 15, 2013

Asiana's absurd threat to sue TV station for defamation

Asiana Airlines announced this morning that it will sue KTVU, a San Francisco Bay Area television station, for incorrectly reporting the names of the pilots of Asiana Flight 214 that crashed July 6.  A lawsuit would be beyond ridiculous and has no basis in the law.

On Friday, July 12, an anchor on KTVU reported, while showing a graphic onscreen, that the names of the pilots on Asiana's Flight 214 were "Sum Ting Wong", "Wi Tu Lo," "Ho Lee Fuk," and "Bang Ding Ow."  It is not clear how KTVU got these fake and offensive names, but they were actually confirmed by an intern at the National Transportation Safety Board (NTSB).  The station and NTSB have already apologized for the error.

Asiana now threatens to sue for defamation, claiming that its reputation was harmed by the broadcast.  Twitter is bursting with comments that carry the same basic theme:  it was the plane crash that hurt your reputation, not KTVU's broadcast.

The names were offensive, and someone was playing a prank, but let me be very clear:  Asiana has no lawsuit here.

First, there is no harm, at least none Asiana would ever be able to show in court.  The broadcast was promptly corrected.  People are not going to stop flying Asiana because it supposedly employs a captain named "Sum Ting Wong," but they may well stop because of a crash landing.  Asiana would have to prove that they suffered harm because of KTVU's broadcast separate and apart from the crash.  No chance that will work.

Second, Asiana -- which is undoubtedly a public figure because, among other things, it advertises extensively and is heavily regulated by governments across the globe -- would have to prove actual malice (i.e., that KTVU knew or had reckless disregard for the truth or falsity of its broadcast).  Asiana will not satisfy that burden, which requires clear and convincing evidence.  KTVU confirmed the names with the NTSB and then promptly corrected the error.  Those two things alone gut any possible showing of actual malice.

Third, a prank is not a statement of fact and a defamation claim requires a statement of fact.

There is more that could be written, but let's wait and see if Asiana follows through on its threat before wasting more time on this nonsense.


  1. First: So instead of being known internationally a tragic, perhaps sympathetic entity. Asiana is now the butt of a joke. Ridiculed. Yes, they had a horrible accident. But which got more coverage? Which will stick in the minds of the general public?

    Second: KTVU "confirmed" the names the first time. Are we really assuming that KTVU is so inept that they couldn't tell what they were putting on the air? That shouldn't have gotten past a Jr. High school student, much less a news agency. Stupidity or Malice? Yes, it might be hard to prove, but you'd force KTVU to argue stupidity and I doubt they'd want to do that.

    Third: Are you saying that KTVU was pulling a prank? I don't think anyone has suggested that. Sure, the information they got was created with the intent of a joke but KTVU was reporting it as a statement of fact. Or do you concede to malice in #2?

    1. Thanks for your comment.

      In response to your first point, I think the crash will stick more in the minds of the public.

      In response to your second and third points, Asiana gets stuck in a bind. It would have to argue that no one reasonably would believe that the names were real. However, it is well-established in the law that a statement that is not reasonably believed to be real/true cannot support a defamation claim.

  2. The reason why Asiana's executive suite might be under the collective and hard-to-say-no-to impression that the KTVU prank is actionable is because, if all of this happened in South Korea (or perhaps if KTVU were found to have any local assets, etc., that the ROK courts could hook into in order to exercise personal jurisdiction over the station), this would not only pave a golden-brick road into civil court for Asiana, it might even form the basis for a criminal complaint as well.

    Korean defamation law is very different from ours. As a jarring example of just how different it can be, the truth is no defense if the defamer knew the damage telling that unpalatable truth would cause. Hustler v. Falwell's logic would never fly there, and "vulgar abuse" isn't necessarily going to be considered "mere." See Kyu Ho Youm, Defamation Law and the Internet in South Korea, 9 Media & Arts L. Rev. 141 (2004).

    1. Thank you for the insights on Korean defamation law and what might be driving the threats of litigation here. Very interesting and helpful to the discussion.