July 15, 2013

The wreckage of Asiana Airlines Flight 214. (Jeff Chiu / The Associated Press)

As most Interneters now know, KTVU-TV, a San Francisco television station, committed a massive mistake in the aftermath of the crash of Asiana Airlines Flight 214. It rushed onto the air an exclusive report disclosing the names of the pilots on that flight, which crashed at San Francisco International Airport on July 6. Here’s a transcript of this exclusive:

We have new information also on the plane crash. KTVU has just learned the names of the four pilots who were on board the flight. They are captain Sum Ting Wong, Wi Tu Lo, [redacted] and Bang Ding Ow. The NTSB has confirmed these are the names of the pilots on board flight 214 when it crashed. We are working to determine exactly what roles each of them played during the landing on Saturday.

Anyone who had taken the step of sounding out those names would have realized that they were a racially insensitive joke. Yet KTVU said that it had secured confirmation from an official of the National Transportation Safety Board (NTSB). That official turned out to have been an intern. The station issued fulsome expressions of regret over the incident.

Those mea culpa didn’t appease Asiana Airlines, which is looking to make a case out of the matter. From the Associated Press: “Asiana has decided to sue KTVU-TV to ‘strongly respond to its racially discriminatory report’ that disparaged Asians, Asiana spokeswoman Lee Hyomin said. She said the airline will likely file suit in U.S. courts.”

The Erik Wemple Blog has reached out to Asiana Airlines for confirmation of that point. No response thus far.

CNN is reporting this statement from the airline:

“After a legal review, the company decided to file a lawsuit against the network because it was their report that resulted in damaging the company’s image,” said a company spokesperson.

There’s little question that the KTVU report disparaged Asians and conveyed false information. That’s unfortunate. It doesn’t, however, give Asiana Airlines a cause of action against KTVU.

To win a judgment against the television station, the airline must prove that the false report so injured its reputation that it resulted in the loss of business. That, it will never be able to do.

If Asiana Airlines suffers a loss of business these days, what will have been the cause? We’ll throw out two options:

1) A crash after an Asiana aircraft approached San Francisco International Airport too slowly, leaving three people dead.

2) A roughly 30-second report on a local TV station using fake pilot names for the flight.

Tough call there.

Consider, too, that the KTVU report in question made no allegations about how the airline operated; it merely read off four names — wrong names, to be sure, but names! What’s defamatory about names? The racial insensitivity in the broadcast, too, is fully protected under U.S. law, notes attorney Jeffrey Pyle, a partner in the Boston-based firm Prince Lobel Tye LLP. “There’s no legal claim that you have against somebody for being unintentionally racist or intentionally racist,” says Pyle.

Another legal dynamic gives this “case” the look of a complete joke: Asiana Airlines is a sizable company with a significant public profile, meaning that for the purposes of a defamation case, it would be treated as a public figure, according to Clay Calvert, a University of Florida professor. Under U.S. law, public figures have a higher burden of proof than do private folks in pursuing their cases against news outlets. Asiana would have to show that KTVU acted with “actual malice” in delivering its report on pilot names. In light of KTVU’s apologies, such malice will be a tough case to make.

If Asiana wants the public to continue pondering the San Francisco crash, it’ll hotly pursue this litigation. It’ll surely kick-start a wonderful public debate: Is the airline worst at PR, law or aviation?

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.