‘Dateline’ can be liable for specific misrepresentation

From the Spring 2000 issue of The News Media & The Law, page 19.

Producers of “Dateline NBC” can be liable for misrepresentation when they make specific promises concerning events within their control, such as whether a certain advocacy group will be included in a story, but not for more general claims, such as that a story would be a “positive” look at the trucking industry, according to the U.S. Court of Appeals in Boston (1st Cir.).

The court also held that a trucker who sued the network over its story on dangers posed by long-haul truckers cannot recover on defamation claims when he had provided or confirmed much of the false information.

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Alan Handel, a freelance producer working for “Dateline NBC,” was preparing a story on the dangers of long-distance trucking in 1994. He contacted trucker Peter Kennedy to see if Kennedy would participate in the story.

Kennedy would later testify that Handel stated that he had “heard you guys had a lot of negative publicity up there in Maine” and that he’d like to “do a little thing to put us in a positive light, instead of all the negative publicity we’ve had.” Kennedy acknowledged when asked by Handel that he “occasionally” made minor falsifications to his logbook.

Kennedy’s employer, Raymond Veilleux, testified that when he asked Handel about his “intentions” for the story, Handel said that he wanted to show what driving is really like with a safe, lawful driver, to counteract the bad publicity the industry had received. Veilleux also alleged that Handel said he would not include an anti-trucking group in the segment, and knew that Veilleux and Kennedy would not participate if he included the group.

Handel denied making such representations.

A producer on the story later testified that Kennedy told her that on a coast-to-coast run, he would typically exceed the permissible number of driving hours. Kennedy denied this.

Eventually, Kennedy allowed the “Dateline” crew to accompany him on a run from California to Maine that started in late September 1994.

On April 19 and 26, 1995, “Dateline” broadcast reports entitled “Keep on Truckin'” and “On the Road Again.” NBC Reporter Fred Francis helped write the script and was the on-air voice for the segments. The story covered the pressures on long-distance truckers, the danger posed by truck-driver fatigue to others on the nation’s highways, and the disregard of federal “hours of service” and other regulations that govern the industry.

In the segment, Kennedy admits that he had repeatedly violated federal regulations limiting the number of hours truck drivers may drive and work in a specific period, falsified his logbooks, and lied to federal inspectors. It also noted that Kennedy had recently tested positive for marijuana and amphetamines in a random drug test.

Kennedy and Veilleux then filed suit in federal District Court in Bangor, Maine, against NBC for defamation, misrepresentation, negligent infliction of emotional distress, invasion of privacy and loss of consortium. They alleged that the program portrayed them in a distorted, untrue manner and argued that their voluntary participation in the program was based on NBC’s false promises that the program would portray the trucking industry in a “positive” light.

Before trial, the district court dismissed Kennedy’s misrepresentation claim, as well as the claims made by Kennedy and Veilleux for intentional infliction of emotional distress and for punitive damages. The jury later awarded Kennedy and Veilleux damages for all their remaining claims, totaling $525,000.

NBC appealed to the U.S. Court of Appeals in Boston (1st Cir.). On March 6, 2000, the court reversed most parts of the judgment against NBC.

The court reversed the libel claims because most of the allegedly defamatory statements were clearly based on Kennedy’s own statements. Although Kennedy alleged that some of the facts reported were incorrect, he had given the incorrect information to the television crew or had not corrected them when they asked him about those facts, the court found.

The remaining statements that Kennedy had alleged were libelous were “imaginative expression” and “rhetorical hyperbole” based on reported facts, the court concluded. The claim that Kennedy was “gambling that his fatal fatigue number doesn’t come up” was a “permissible summation of Dateline’s evaluation of Kennedy’s driving practices” based on the information the television crew had about Kennedy, the court held.

The court reversed the part of the misrepresentation award that was based on the assurances that the show would be a positive portrayal of the trucking industry, finding that such a promise was not a sufficiently specific fact to justify a misrepresentation claim.

However, the alleged promise not to include the trucking safety group in the program can reasonably be considered “specific facts” about the content of the program that “Dateline” could control. The court remanded that claim back to the trial court, to determine if any damage was caused to Veilleux’s reputation solely by the inclusion of the safety group in the broadcast.

Holding NBC liable for such misrepresentation does not offend the First Amendment because Veilleux is trying to recover actual losses suffered by his business due to a promise made by the television show, not reputational damages based on the content of the story, the court held. If he were trying to recover for damage to his reputation, the claim would be an “end run” around protections in libel law and therefore unconstitutional, according to the court.

The court reversed the emotional distress awards, finding that the claim, based on the misrepresentations allegedly made by the “Dateline” crew, is duplicative and circumvents the established limits of a misrepresentation claim — namely, that damages recovered be limited to actual loss, not “pain and suffering.”

Additionally, the court reversed the invasion of privacy judgment that was based on reports of a past drug problem, explaining that since “Kennedy’s drug use was closely related to the theme of highway safety, an issue of public concern featured in the Dateline program, we conclude that the First Amendment protects defendants’ publication.”

The court also reversed the “false light” invasion of privacy claims because they were based on the same statements that were allegedly libelous. Kennedy and Veilleux could not prove that “Dateline” acted with any degree of fault on the defamation claims, the court noted, and therefore could not meet the even higher burden in a false light claim of showing that the producers acted with “actual malice” — knowledge of falsity or reckless disregard of the truth.