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HBO has been basking in the success of its non-fiction documentaries "The Jinx" and "Going Clear." However, an allegedly false report titled "Children of Industry" could cost HBO millions of dollars.
In 2008, HBO's Real Sports with Bryant Gumbel featured a report about child labor and the manufacturing of Mitre-branded soccer balls in India. The show claimed that children were paid five cents per hour to hand-stitch Mitre's soccer balls. Mitre Sports International claimed that the report was false, and footage was fabricated. According to Mitre, the children were paid by HBO producers to pretend to be child workers.
After the show aired, Mitre sued HBO for defamation. Five years later, the case will soon go to trial.
Defamation is an all encompassing term for false written (libel) or spoken (slander) statements that could or does hurt another person's reputation. The elements of defamation generally include:
To win its defamation case, Mitre will probably need to prove that HBO made a false statement that was heard by at least one other person. Mitre would also need to show that the false statement actually hurt Mitre's reputation. If it did not, then the statement would be harmless and not defamation.
Mitre argues that HBO's representations in the report are untrue. Mitre claims to have interviewed the children shown stitching balls in the report. The children admitted that they were paid 100 rupees, about $2, to be in the show, pretending to sew balls. Mitre also has testimony from one HBO researcher who could not find any children who could stitch footballs to feature on the show.
Also, the claim that Mitre uses child labor is especially damaging because using child labor is a crime in the U.S. When a defamatory statement insinuates that a person committed a serious crime, it is considered defamation per se. If this is defamation per se, Mitre would not need to prove that the defamatory statement damaged its reputation. HBO would be liable just for making the false statement.
Truth is a defense to defamation. No matter how damaging a statement may be, it is not defamation as long as it's true. HBO argues that even if the children shown in the report don't actually work to make the balls, the rest of the report was "substantially true." HBO claims that it has evidence to show the Mitre does use child labor in its supply chain.
HBO also wanted to argue that Mitre is a public figure, but a judge recently ruled against HBO. Mitre is not a public figure because it is not a well-known brand. This is a blow to HBO's defense.
Usually public figures must prove the added element of actual malice. Actual malice means that HBO knew, or should have known, that the statement was false and made it anyway. Without this harsher standard, Mitre only needs to show that HBO was irresponsible in its fact checking.
The lawsuit against HBO starts on April 13. We will have to wait and see if a judge or jury agrees with Mitre or with HBO.