A DISCUSSION OF LAW AND JOURNALISM

Angelina’s Lover Killed on Ski Trip?!

Brad and Angelina Snow

By Aleksandra Kravets

Relax. Brad Pitt is alive and well. But this is exactly how rumors start … and before you know it, they go mega-viral. Adam Sandler, Eddie Murphy, Lady Gaga, and 50 Cent, are only a few of the stars who’ve been recently targeted by false death hoaxes.

Entrepreneur Rich Hoover is partly to blame.

Mr. Hoover created Fakeawish.com, which allows anyone to plug a celebrity’s name into an online generator that creates morbid celebrity headlines, from jet-ski crashes in the tepid waters off the Turks and Caicos to snowboarding accidents in the glacial Swiss mountains.

For him, “no publicity is bad publicity” isn’t just an adage, it’s a career ethos.  False death reports harm nobody. It may even help them.  After all, he says “it’s free press.”

And a media expert will back him up.

Mark Bell, a professor at Indiana University-Purdue University who studies deception in digital media, told the New York Times that there’s “not a lot of cost, either financially, morally, legally or criminally” in what Mr. Hoover does.

We weren’t sold on that theory.

Back in September, Jerry Springer was cruising down the highway when he heard the news of his death in a car crash. He had to pull over to call home and pacify his shaken wife, who, as he’d expected, had heard the false report, too. But what if his wife had been the one driving when she heard the report… and became so distraught that she crashed her car? Or, upon hearing the terrible news, took her own life?

LASIS investigates.

The potential consequences of false gossip and death is evidenced by the tragic story of famous South Korean actress Choi Jin-Sil who, according to internet gossip in 2008, was the reason fellow actor Ahn Jae-hwan had killed himself. More specifically, it was said that she’d lent him large sums of money and then hounded him for it. In a society that values honor, Ms. Jin-Sil was disgraced. Less than one week after the reports emerged, she hanged herself. The story was found to be false and police arrested a securities company employee for having started the rumor. The false rumor had a ripple effect beyond just Ms. Jin-Sil’s suicide, which troubled so many of her countrymen that there was a temporary, but significant, increase in the suicide rate across South Korea.

Of course, the first thought most people would have in dealing this intentionally false rumors published about them would be to sue for libel. This is done more easily abroad than it is here at home. In Canada, England and Australia, intent to defame is presumed and the burden is on the libeler to prove her statements are true. Under English law, a defamed party is even reimbursed for the costs of finding the identity of an anonymous defamer via the web. And in most other countries defamation is a criminal offense.

In the U.S., if a celebrity sues for libel, the burden is on her to prove that the information was untrue, and that it was published with “actual malice”—specifically that the publisher knew the information was false or had a “reckless disregard” for whether or not it was false—and that what was said was inherently derogatory.

U.S. courts have generally held that false reports of death alone are not considered defamatory, unless the notice of death contains further derogatory information. (People are encouraged to speak no ill of the dead, after all.) Mr. Hoover is aware of this, and so steers clear of any kind of salacious deaths that could damage a celebrity’s reputation. There are no suicides, drug over doses, or alcohol-related deaths on his site, which offers carefully crafted templates to create deaths by unfortunate accident.

Alternatively, a false light invasion of privacy claim has lower standards of proof than defamation and focuses on personal feelings, dignity, and humiliation. And unlike libel claims, which require proof of damage to reputation, false light claims require only that a statement was highly offensive or created a misleading impression.

False death reports would fit the bill.

Proving that the publisher knew the report was false or acted with reckless disregard for the truth should be easy. This may be a star’s best bet at getting recourse against Mr. Hoover. Not all jurisdictions  recognize “false light” lawsuits.  New York, most notably,  does not. Georgia, where Mr. Hoover is based, does.

Now to the hypothetical, but not all that farfetched, questions that we posed earlier.

Let’s say Mr. Springer’s wife was driving her car, heard a false death report on the radio, and crashed. Could her estate sue for her wrongful death and claim that the false report was made without regard for the truth, and caused her death? It would be hard.  Surely there are many reasons someone might crash. Was she reaching for her phone? Looking in the mirror? Falling asleep? Did she have a history of accidents?  Proving that the sole cause was the news report would be difficult.

What if, instead, she was so distraught at hearing the news that she took her own life?  And just to make sure we know why she plunged out the window, what if she left a note saying, “My life is not worth living without my darling Jerry.  Signed, Mrs. Springer”?

Proving causation would be easier in this instance. But surely the defendant would argue other factors that may have led to her suicide—that she had shown signs of depression, for instance, had a history of alcoholism, or was in some other way predisposed to this kind of rash action. It wouldn’t be an easy win for the plaintiffs.

What if instead of dying, she only suffered extreme mental anguish, and had go to therapy five days a week for her nightmares? A claim of for some form of emotional distress might be easier. Some states have permitted emotional distress claims when a telegram incorrectly announced the death of a loved one. Money has been awarded in some heinous situations, even in the absence of physical manifestations.

In a 1975 N.Y. Court of Appeals case, a negligent infliction of emotional distress claim succeeded when a hospital misinformed a woman that her mother had died. Note that the crux of this decision rested on the hospital’s duty to inform the families of the deceased. Neither the website that publishes these false death reports, nor the people who set them in motion owe the celebrities such a duty — they simply put the news out there for anyone to read it.

Under a reckless or intentional infliction of emotional distress theory, severe emotional distress must be caused by a defendant’s extreme and outrageous conduct. Arguably, publishing a false death report is utterly intolerable in a civilized society. Still, in 1988, the U.S. Supreme Court ruled that celebrities could only recover damages for intentional infliction of emotional distress (as in defamation suites) if the publication made the false statement with “actual malice.”  Without this, the media are protected by the First Amendment.

Since the purpose of his site is to disseminate false death reports, it’s safe to assume that Mr. Hoover knows that the reports are not true. Mr. Hoover’s behavior might well amount to the “actual malice” needed for Mr. Springer to sue.

Besides being occasionally bombarded with hate mail and getting two cease and desist letters, Mr. Hoover has so far lucked out; he has yet to be brought to court over the content of Fakeawish.com.

But it would take just one terrible incident to open the door to a flood of litigation, which, one way or another, and despite Professor Bell’s estimation, would cost Mr. Hoover quite a bit.

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One Response

  1. Robin says:

    Interestingly, someone committing suicide because of a prank is all over the news now. There’s even talk of criminal charges. But it’s b.s.

    http://abovethelaw.com/2012/12/dear-world-prank-calls-do-not-cause-suicides/?utm_source=Above%20the%20Law&utm_campaign=Above_the_Law_Daily_12_11_2012&utm_medium=email

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