The Virginia Defamation Law Blog
They say a picture is worth a thousand words. They also say the camera doesn’t lie. Remember, though, that photographs and videos can be altered in a variety of different ways, and when the alteration conveys a false and defamatory impression, the manipulated images can be actionable in a court of law.
In the case filed yesterday against Katie Couric, what essentially happened is this: Couric is the Executive Producer of a documentary on gun violence called Under the Gun. She invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. At one point in the film, she is shown asking the group this common question on the subject of background checks: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” The various representatives of the VCDL sit in stunned silence and look away, as if they had never considered the question before. The camera then cuts away, leaving the viewer with the impression that none of the interviewees were able to come up with a single answer.
According to the allegations in VCDL’s complaint, this exchange never happened, at least not like this. In truth, they say, there was no awkward silence, and they responded to the question right away with a variety of answers. In fact, they allege, you can hear the unedited audio of the exchange here (and embedded below). The footage of the VCDL members twiddling their thumbs and looking silently around the room was taken at a different time, when Couric allegedly told them they needed to sit silently for ten seconds so that “recording equipment could be calibrated.”
The VCDL and two of the people portrayed in the interview sued for defamation. In their complaint, they ask the court to award $12 million against Couric and the film’s director, along with the studios involved.
Photographs may not lie, but they can be manipulated with programs like Photoshop. Videos can be edited to distort the truth. The images on the screen may be a true and accurate representation of what was in front of the lens at the times the footage was taken, but snippets can be spliced together on the cutting-room floor in such a manner as to confuse the viewer as to what really happened. We see this a lot on late-night television, usually for laughs. Couric has admitted that her documentary “misrepresented” the VCDL interview. The documentary, however, is not supposed to be funny; it is being passed off as journalism.
If a photograph has been “Photoshopped” to show a person performing an immoral act that never actually happened, liability is usually pretty clear, as the image was “false.” If the photo has not been altered, any defamation claim will usually be based on a false caption or description of the photograph rather than the photograph itself, as an unedited photograph is “truthful” with respect to what the camera sees. In the Couric case, the video footage tells the truth in the sense that it accurately depicts the subjects of the interview (though with shadowy lighting). However, the allegations are that the video images were rearranged in such a manner as to convey an untrue story. The complaint also alleges that the audio was manipulated along with the video, giving the viewer a completely false representation of what transpired at the interview.
Courts have recognized the many ways in which creative video editing can lead to defamation liability:
[T]elevision broadcasts add new and potentially significant variables to the defamation analysis. Courts must scrutinize the juxtaposition of the audio and video portions of a television program. In subtle ways, a television director can alter the tone of an otherwise innocuous broadcast. With the emerging popularity of self-styled “magazine” news programs, courts should be sensitive to the possibility that a transcript which appears relatively mild on its face may actually be, when the total mix of creative ingredients are considered, highly toxic. Indeed, a clever amalgamation of half-truths and opinion-like statements, adorned with orchestrated images and dramatic audio accompaniment, can be devastating when packaged in the powerful television medium.
(See Corporate Training v. National Broadcasting Co., 868 F. Supp. 501 (E.D.N.Y. 1994) (citation omitted)).
VCDL has a valid point. Under the Gun makes them look like a bunch of uneducated and ill-prepared buffoons. If their allegations are true, then the video lied, at least when combined with the edited audio. A four-year-old would understand that the editing job is deceptive and dishonest. The court will have no trouble reaching this conclusion and will certainly not dismiss the case on the ground that the footage truthfully depicts what the plaintiffs look like.
Whether VCDL is going to win the case and be compensated with a $12 million jackpot is another matter. Conveying a false message is just one part of the equation. VCDL will also have to prove that the falsity was more than merely insulting and embarrassing; they will have to show that it was serious enough that people who see the documentary would tend to hold VCDL and its members in lower esteem, or would be deterred from wanting to associate or do business with them. In their lawsuit, they claim that the false portrayal of their answer to that single question “conveys that the VCDL, Hawes, and Webb are ignorant and unfit in their trades, uninformed notwithstanding their expertise in the areas of gun regulations and gun rights, that they were stumped, and that they have no basis for their opposition to universal background checks.” I think that’s probably a stretch. But if the court agrees with them, it will likely overrule the inevitable motion to dismiss and let a jury decide how much the misrepresented interview is worth.
You know what else they say? You can’t always believe what you see on T.V.