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Comments about fake T-shirt ad did not harm reputation

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From the Spring 2000 issue of The News Media & The Law, page 18.

From the Spring 2000 issue of The News Media & The Law, page 18.

A radio host’s decision to repeat claims posted on an electronic bulletin board were not shown to have damaged an individual’s reputation, and were not made with sufficient recklessness to justify a claim for “false light” invasion of privacy, the U.S. Court of Appeals in Denver (10th Cir.) held in late January.

The court upheld the dismissal of a claim brought by a man whose phone number was included in a message falsely advertising T-shirts bearing offensive slogans concerning the 1995 Oklahoma City bombing.


Within a week of the April 1995 bombing of the federal building in Oklahoma City, a posting on an America Online message board advertised the sale of “Naughty Oklahoma T-Shirts.” The shirts bore slogans making light of the deaths, such as “Visit Oklahoma — it’s a Blast” and “Rack ’em, Stack ’em and Pack ’em — Oklahoma 1995.”

The postings, attributed only to “Ken ZZ03,” provided a phone number for ordering information. The number actually belonged to Kenneth Zeran, an artist, photographer and filmmaker, who had nothing to do with the postings. The user name belonged to an unknown individual who had used fraudulent information to obtain a trial membership with AOL.

Zeran started to receive “nasty and threatening” phone calls the day the first posting appeared, and asked AOL to take steps to remove the offensive postings, make sure his phone number did not appear in future postings, and print a “retraction” of the postings noting that they were false. AOL removed the ads and closed the account from which they were posted, but said that as a matter of policy, it could not post a retraction.

Four days after the original posting, radio show host Mark Fullerton, whose on-air name is Mark Shannon, of KRXO in Oklahoma City received copies of the postings. Before his show on May 1, Shannon tried to e-mail KenZZ03, but was notified that the name was not a known AOL account. He did not call the phone number listed because it was before business hours.

Shannon discussed the incident on the air, read one of the postings, and encouraged his listeners to call the number to complain. Zeran received more than 80 angry phone calls that day, some of which were death threats. He learned of the KRXO broadcast from a caller, and asked the station to broadcast a retraction, which it did.

Zeran sued AOL and KRXO for libel and other claims. The suit against AOL was dismissed by a federal judge in Alexandria, Va., in March 1997, and the dismissal was upheld by the U.S. Court of Appeals in Richmond (4th Cir.) in November 1997. Both courts found that AOL was shielded by limitations on liability for computer service providers contained in the 1996 Communications Decency Act. (See NM&L, Winter 1998)

In December 1997, a federal District Court in Oklahoma dismissed Zeran’s claim against KRXO, finding that the announcer had no reason to know the ads were fakes. (See NM&L, Winter 1998)

Zeran appealed to the U.S. Court of Appeals in Denver (10th Cir.), and the appellate court affirmed the dismissal in January 2000.

The court noted that Zeran would have to prove “special damages” under state law for such a libel claim, and found that Zeran’s “emotional distress” and single visit to a physician were insufficient evidence of damage.

Zeran had argued that even if the callers did not know who he was, the broadcast created a “negative reputation” for him that damaged him. But the court ruled that the anonymity involved made the link between his telephone number and himself insufficient to sustain damage to his reputation. While he may have suffered an injury, damage to reputation is required for a libel claim, the court noted.

Zeran also argued that the court should not have dismissed his claim for “false light” invasion of privacy. The announcer’s negligent actions placed him in a false light that was highly offensive to a reasonable person, he argued. Although Oklahoma courts have required that the defendant act with a reckless or knowing intent, other states have allowed the lower standard of simply negligent action when a private person is involved in a matter of public concern, according to Zeran.

But the court held that Oklahoma’s requirement that a defendant must have “had a high degree of awareness of probable falsity or in fact entertained serious doubts as to the truth of the publication” in false light invasion of privacy claims was intentional, and there is no reason to believe the state would change that standard in this case.

Zeran had argued that the radio host’s failure to call the number and verify the facts show a reckless disregard of the truth, but the court found that while the announcer’s actions may have been negligent, they were not reckless, and he did not have reason to know that the information was false.

The court also upheld the dismissal of Zeran’s claim for intentional infliction of emotional distress, finding that Zeran failed to prove that KRXO “behaved in an extreme and outrageous way toward him” and did not demonstrate that he suffered severe emotional distress. Conduct must be “beyond all bounds of human decency” or “regarded as utterly intolerable in a civilized community” in such a claim, the court noted. Oklahoma courts have held that the First Amendment requires a plaintiff to establish the same level of intent to recover for emotional harm as is necessary for a defamation claim, or the First Amendment protections for defamation could easily be circumvented, the court noted.

The appellate court found that the trial court abused its discretion, however, in refusing to allow KRXO to recover the costs of litigation from Zeran. The trial court had held that even though the station prevailed, its actions were “sufficiently distasteful” to warrant denial of costs. But the appellate court found that a trial judge cannot deny costs because it personally disapproves of the conduct upon which the unsuccessful claim was based. The appellate court ordered the judge to reconsider whether KRXO was entitled to recover its costs.