The Facts:
The documentary, Challenger Disaster, premiered last November in the U.S. and starred William Hurt as Nobel Laureate physicist Richard Feynman, who became part of a team commissioned to investigate what went wrong. The TV documentary became one of the most highly-rated programs in Science Channel’s history. The film opens by saying, “This is a true story.”
According to the complaint, “the movie ignores or manipulates evidence and fact and manufactures false facts in a deliberate effort to be more entertaining and dramatic at the peril of truth.” The lawsuit claims that the TV documentary depicted Lovingood as a liar and the person at fault for the death of the entire crew. The lawsuit argues that certain scenes in the TV documentary never took place, eg., “This movie scene never took place in real life at any hearing. Plaintiff was never asked to give any testimony as depicted and he did not give testimony to the question shown in the movie in this made-up scene. No NASA engineer had ever written on a piece of paper, stated or testified that NASA had actually determined that the probability of total shuttle failure ‘with loss of vehicle and the death of the entire crew’ was 1 in 200.”
Lovingood believes that the movie’s alleged misrepresentation resulted in him appearing to be “a liar, a cover-up artist and an uninformed manager who fails to communicate with his engineers.” Lovingood is demanding $7 million in compensatory damages and another $7 million in punitive damages over a film that allegedly “links Plaintiff as contributing to the seven deaths of the tragically heroic Challenger crew.”
The Law of Defamation:
The law of defamation requires four items: (1) damages to the plaintiff’s reputation caused by the (2) publication by the defendant to a 3rd person (3) of a defamatory statement that (4) references the plaintiff. A defamatory statement is a false statement of fact that harms the reputation of the plaintiff by reflecting negatively on a character trait (e.g. honesty, peacefulness, loyalty and morality).
Documentary filmmakers have a few defenses, below are the most common:
• Documentary filmmakers may argue that the statements represented are factually true. If the statements are factually true, there is no defamation.
• Documentary filmmakers may argue that the statements were only opinions, eg., the statements made would not reasonably be interpreted as stating actual facts. If the statements are only opinions, there is no defamation.
• Documentary filmmakers can show there was consent by the plaintiff. If the plaintiff consented to the statements there can be no defamation.
If the documentary filmmaker does not have any defense available, he can argue that the damages to the plaintiff’s reputation were minimal and that the damage award should be reduced accordingly.
The Science Channel will most likely argue that the statements represented are factually true, or that Lovingood’s reputation was not harmed and damages should be minimal.
The Lesson:
Documentary filmmakers should obtain a waiver of consent from individuals in which statements of fact can be construed as damaging to their reputation. This waiver of consent is not needed if all statements of fact depicted in the documentary film are factually true and accurate.
Here is a copy of the complaint against The Science Channel.
Eric J. Harrison, Esq. is a registered attorney licensed to practice in Washington state. By accessing and reading this blog, you acknowledge and understand that no attorney-client relationship has been formed and you further acknowledge and understand that this blog is not intended to constitute legal advice. Legal advice and counsel requires a fact-specific analysis of your particular issues, and you should thus obtain legal advice directly and individually from an attorney licensed to practice in your jurisdiction, if appropriate.
