Discovery Channel Avoids Liability for Reality Star’s Inflammatory Facebook Post (Hawke v. Discovery Communications)

Fans of the Discovery Channel’s survival television programs may be familiar with reality stars Mykel Hawke, previously featured in the channel’s program Man, Woman, Wild, and Mykel’s former military colleague, Joseph Teti, star of Discovery Channel’s Dual Survival. Hawke and Teti were, at one time, friends as well as business partners. The relationship ultimately deteriorated and, in connection with the former friends’ falling-out, Teti took to Facebook, posting inflammatory comments regarding Hawke’s mental health and military service.[1] Hawke responded by e-mailing Discovery Channel executives, stating that Teti had used the channel’s “network, television show, [and] social media page for personal defamation and threats.” While unable to locate any threatening comments posted to the Discovery Channel’s official Dual Survival Facebook page, the channel nonetheless applied a filter preventing any posts to or from the page that referenced Hawke.

Unsatisfied with the Discovery Channel’s response, Hawke filed a lawsuit against the Discovery Channel and its parent company, Discovery Communications, Inc. (collectively, “Discovery”), asserting several claims that included defamation; libel; and negligent hiring, training, and supervision arising from Discovery’s purported failure to properly vet or train employees such as Teti regarding “public interaction, [and] when and what types of communications employees should say publically [sic] and/or put into print.”

Through his lawsuit, Hawke essentially made the broad-sweeping assertion that media companies should be held responsible for their talent’s public statements, sharing liability in those instances in which the challenged statements are deemed defamatory. Moving for summary judgment, Discovery argued—and the court ultimately agreed—that it should not be held responsible for Teti’s posts. While the Discovery Channel maintained an official Facebook page for Dual Survival, Teti was neither expected, nor authorized, to post from the page, and Hawke had in fact provided no evidence that Teti’s comments were posted to or from that official page. Rather, it appeared that, based on the evidence in the record, Teti’s posts were published to his personal Facebook pages. Because Hawke failed to demonstrate how Discovery was responsible or involved in the posting of Teti’s statements, Hawke’s defamation and libel claims against Discovery could not stand.

Hawke next argued that Discovery was responsible for Teti’s posts under a theory of “respondeat superior,” a legal doctrine that imputes responsibility (and liability) to a party for the acts of its agent or representative. Hawke had provided no evidence, however, that Teti is or was an “agent” of Discovery, such that Discovery should be held liable for Teti’s statements. Teti was not employed by the Discovery defendants in the lawsuit, but had instead signed an employment agreement with Discovery Talent, a third party that was not named as a defendant in the action. Hawke provided no explanation as to how Discovery Talent is connected to the named Discovery defendants; accordingly, even if Teti were deemed an “agent” of Discovery Talent, the court could not determine, based on the evidence before it, that an agency relationship could be extended through Discovery Talent to Discovery Channel or Discovery Communications. Hawke’s claims of negligent hiring and supervision failed for the same reason:  a claim of negligent hiring and supervision assumes that an employment or agency relationship exists, which Hawke had been unable to establish.

Hawke’s inability to prevail on his claims underscores the importance not only of accurately determining the actual source of an allegedly defamatory statement, but even more fundamentally, of identifying and bringing suit against the correct entity. Had Hawke sued Discovery Talent, Teti’s actual employer, his lawsuit may have proceeded further, as Teti’s employment agreement with Discovery Talent explicitly prohibited him from making any statement concerning Dual Survival, or any party involved with Dual Survival, in any media (including Facebook) without Discovery Talent’s prior consent. Without properly connecting the dots between Teti, Discovery Talent, and the actual Discovery entities named in the lawsuit, however, Hawke could not establish that Discovery should be held liable for Teti’s statements.

Media companies should find this decision instructive, particularly those companies that enter into agreements directly with talent. While media companies may wish to exert control over their talent’s public statements, such control (particularly when memorialized in a contract) may ultimately prove problematic if a defamation plaintiff seeks to impute liability to the company for statements made by talent when the company ostensibly authorized or controlled those statements. Such companies should carefully consider the risk of being held responsible for their talent’s social media posts and other public statements when drafting and negotiating talent contracts, and should review their contracts with knowledgeable counsel to best mitigate those risks.

Such companies should also assess whether talent agreements should be entered into by a distinct corporate entity—namely, a talent subsidiary. In this instance, Discovery’s corporate structuring proved strategic and useful: even if Discovery’s talent subsidiary, Discovery Talent, had been named as a defendant, the case against the Defendants may nonetheless have been dismissed given Discovery Talent’s apparently distinct corporate existence. Media companies should, therefore, not only evaluate the substance of its talent agreements, but also the specific corporate entity that is a party to such agreements.

 

 

[1] Teti’s post stated that (1) “three clinical psychologists have diagnosed Mykel Hawke as having Narcissistic Personality Disorder”; (2) “Mykel Hawke is mentally ill”; and (3) “Mykel Hawke is having his Special Forces Tab revoked by the Arm[y].”