May 5, 2011
On April 23, two brothers, Walid Elhanafi and Mohamed Elhanafi, filed a complaint in New York state court against Fox News, accusing the broadcaster of libel.
This libel, or false statement made in a form more permanent than a verbal statement, was a local Fox News affiliate’s report linking the two brothers to a third brother, Wesam, who was indicted by federal authorities for providing material support for al Qaeda.
The plaintiff-brothers claim this statement has falsely painted them as terrorists in their communities.
What’s interesting is that the station did not explicitly state the plaintiff-brothers were guilty of any wrongdoing.
Rather, the connection was made in the middle of a news segment discussing the indicted brother’s arraignment.
According to the complaint, first the report for Fox News mentioned the third brother’s arraignment in Federal Court.
Next, while the reporter is standing in front of a Western Union branch, he stated that “the Elhanafi family used this Western Union store to cash everyday checks and wire money abroad, but nothing illegal.”
Perhaps the statement is a bit out of place, but it’s still harmless enough.
The next part, though, is probably where Fox crossed the line.
The segment then displayed photographs of the plaintiff-brothers, along with copies of checks and receipts for banking transactions (the brothers are also suing the banks that released those documents without their authorization).
Next, the reporter referred to the third brother’s indictment, and said that Wesam Elhanafi was accused of travelling to Yemen to meet with Al-Qaeda and taking an oath of allegiance to the group.
While the elements of a cause of action for defamation in New York are pretty straightforward, the libelous statement or statements in question here are not.
In New York, all one needs to prove to prevail in a defamation claim are a false statement was made without authorization to a third party, and the statement must be damaging; in addition, the speaker of the statement must have been at least negligent in making the statement (meaning that higher levels of fault, such as recklessly or intentionally, may also apply).
There really shouldn’t be much of a question on any of these elements, save one: was a “false statement” actually made?
In the very strictest sense, no.
On the other hand, courts don’t typically view a matter in the very strictest sense.
A court would probably inquire into the purpose of even mentioning the plaintiff-brothers in the report and displaying their faces for the entire world to see.
Even if Fox has a good explanation, they’d be better off settling this one; vaguer communications have been found to be statements, and the news report as a whole would probably be found to be a statement communicating a defamatory message.
Hopefully Fox and other media outlets can learn an important lesson here: associating someone with a terrorist is serious business, so be sure it’s true before you even make the slightest insinuation.