The coursework I’m submitting for this course is the assignment that required us to examine a documentary and find issues legally as we have studied media law and the prompt was as follows:
Watch “The Dark Side” and also Sly’s recantation video (above) and then answer the following questions about the film and what you might have done differently or recommend if you were the producer or lawyer reviewing the film. Because this documentary was produced and aired in the United States, US law applies here – not European, UK or Qatari law.
Pre-Publication Review: “The Dark Side: Secrets of the Sports Dopers”
Q1: There are at least 10 professional athletes who the film accused of taking PEDs, including professional baseball players Ryan Zimmerman and Ryan Howard. For those two athletes – Zimmerman and Howard -- are the statements in the documentary defamatory? If they are, are these guys public figures or private ones, and why? Based on your answer to that question, what would each have to prove in order to win a libel case? Can they do it? What defenses would you use if you were Al Jazeera? (40 points)
1. Are the statements in the documentary defamatory:
Considering the elements of libel – according to the class’s PPT slides – defamation requires:
Identification: the plaintiff is identified by name, age, and occupation
Publication: Presume in media cases
Defamation: harms one’s reputation, does damage to one’s social contacts
Fault: Proves actual malice/bad faith – which is proof of high awareness of probably falsity or evidence of purposeful avoidance of the truth
Hence under these criteria we see defamation on several counts such as:
The statements towards Howard and Zimmerman alleged that both of them took D2 and that Howard’s hits were ‘more explosive’ and had more home runs due to Charles Sly.
Additionally, Sly claimed that Zimmerman had more power to his hits, and worked with him off-season.
The figures were both identified and the document was publicized, and the statements in relation to their careers are definitely defamatory;
These claims are strongly harmful to their reputations and business contracts – as they have most likely got contracts mainly for these achievements.
The statements above that were publicized by Aljazeera did not prove to be statements that have high proof of falsity. That is because the entire documentary shows an extensive ‘dark side’ for athletes and their reliance on performance-enhancing drugs. If anything, the cause for publicizing all of these illegal acts is presumably for good faith;
Aljazeera publicizing these figures is done in an attempt to call out the mistakes of the athletic industry. Claiming someone is doing a specific action instead of just characterizing them (like calling them racist) with a trait is libelous, as the reason article in 2021 proved.
Although even if the plaintiff claimed that these facts oppose the truth, being that Zimmerman and Howard passed the drug tests, their claim would not be as effective as the legitimacy of the drug tests has been put up to air due to this documentary as well;
Sly and other pharmacists have claimed that many of the tests athletes take do not provide accurate results as to whether the athletes take performance-enhancing drugs.
It can be considered defamatory because it shows some level of fault - by damaging the ‘truth’ of their careers
2. Are these guys public figures or private ones, why:
They would count as public figures as the two figures are
Involved in an important and pre-existing controversy about doping in the sports industry
Able to take on this case or controversy and influence a different outcome with intent
Able to tweet or use any other media access about this to influence public opinion to deem Al Jazeera's documentary as false, for instance.
3. What would each have to prove in order to win a libel case?
Under the topic of what is libelous: Allegations of Illegal Activity is valid for this case as well as the idea that this could possibly make people think less of them once the story got published.
They would have to prove the following criteria:
Identification: the plaintiff is identified by name, age, and occupation, as both Zimmerman and Howard are not only recognized with names but also by their occupation and the teams they play for.
Publication: Presume in media cases, as this case was published in AlJazeera
Defamation: harms one’s reputation, does damage to one’s social contacts, here they could face several bans due to their attachment to banned drugs and be deemed unfit to play and also be ostracized by other players to not be held guilty by association to them
Fault: Proves actual malice/bad faith – which is proof of high awareness of probably falsity or evidence of purposeful avoidance of the truth
They would have to prove that the allegation of taking D2 - and other mentions- fall under fault and defamed them.
4. Can they do it?
They are able to sue AlJazeera, considering that we have counted them as public figures, wherein public figures and public officials often enjoy stronger protection within Libel law than any other private figure or official does.
5. What defenses would you use if you were Al Jazeera?
A defense Al Jazeera could hold is that there was no Fault here, there was no actual malice involved and neither was there reckless disregard. Al Jazeera reported a thorough investigation of the drug abuse within the sporting community and it was done in good faith to limit the drug use. It was done in the name of good journalism and hence any action taken against them would discourage such journalism.
A defense Al Jazeera would claim that these statements were not made by them, so they should not be the ones that were sued.
Another claim they could make is that none of these statements had actual malice in them, as they were not pursued by AlJazeera, and were not the focal point of the documentary either; the focal point of the documentary was to prove how thorough the drug enhancing industry is in sports, rather than focusing on these two athletes only.
Q2: Name 3 other people or organizations in the film who have been accused of illegal or unethical activity. In each case, do the same analysis above: Are the statements defamatory? Is the person a public figure or a private one? If so, what would each have to prove in order to win? Can they do it? What defenses would you use? (30 points)
Three other people or organizations in the film who have been accused of illegal or unethical activity:
The Guyer institute
Dustin Keller: bought the stock of the website that sells all the illegal performance-enhancing drugs (20:46)
Peyton Manning
Are the statements defamatory?
The Guyer institute
Charles sly claimed that he worked under them and that Dr. Guyer dispenses drugs out of his office as Charles not only saw patients with Dr. Guyer but also worked out of the pseudo-pharmacy at the institute which would ruin their social and business contacts as an institute that works on anti-aging.
The social and business contacts are also ruined in the case of people not just consulting them but getting medications as they were never supposed to be prescribing Growth Hormones as an anti-aging clinic, as mentioned by Professor Alan Rogal
They fulfill the criteria of defamation to the institute, but it’s hard to prove whether they carry the fault criteria and whether these statements were made in bad faith or actual malice. However, they are defamatory statements
Dustin Keller
The statements fall under the criteria of defamation as well because Keller is claimed to have used drugs all through college when he played and would stop taking the hormones around the time of the test as well as used Delta 2 since 2006 which means that an allegation of illegal activity was made hence the statements can be called defamatory.
Peyton Manning
Allegations were made that after his injury in 2010 he was treated at the Guyer Institute in the presence of Charlie Sly where he was being prescribed Growth Hormones that were often prescribed by Dr. Guyer to his wife Ashley Manning which also brought his wife under the fire. These allegations, seeing as he is a famous public figure affected his reputation and contacts and his image meaning it was defamatory.
Is the person a public figure or a private one?
They would count as public figures as the three figures are
Involved in an important and pre-existing controversy about doping in the sports industry
Able to take on this case or controversy and influence a different outcome with intent
Able to tweet or use any other media access about this to influence public opinion to deem Al Jazeera's documentary as false, for instance.
If so, what would each have to prove in order to win?
The following criteria:
Under the topic of what is libelous: Allegations of Illegal Activity is valid for this case as well as the idea that this could possibly make people think less of them once the story got published.
They would have to prove the following criteria:
Identification: the plaintiff is identified by name, age, and occupation
Publication: Presume in media cases
Defamation: harms one’s reputation, does damage to one’s social contacts
Fault: Proves actual malice/bad faith – which is proof of high awareness of probably falsity or evidence of purposeful avoidance of the truth
The Guyer institute:
They would have to prove the illegality of the accused activities and proof of some fault in the claims made about their institution.
Dustin Keller:
He would have to prove the illegality of buying stock that sells illegal performance-enhancing drugs, and how this is false and was done in bad faith or actual malice.
Peyton Manning:
He would have to prove how these claims fall under bad intent or actual malice towards his career and the allegation of being involved in illegal activity during his recovery period as well as allegations made towards his wife for being a part of the scheme to provide him with the growth hormones under her name.
5. Can they do it?
Considering that Keller and Manning are famous public figures, public figures have better protection against libel and defamation cases. As for the Guyer institute, it’d be more challenging since they are a medical institute prescribing drugs that cannot be sold off-label and even though Dr. Guyer is apparently prescribing them.
6. What defenses would you use?
Similar to the defenses above, Aljazeera would claim that these accusations were not done by Aljazeera
That actual malice/bad faith is hard to prove in these allegations (as actual malice is, according to class: proof of high awareness or probably falsity or evidence of purposeful avoidance of the truth, including failure to act reasonably in dispelling doubts about accuracy.)
AlJazeera can claim that Sly’s comment about Neil making 2 million a year was an opinion instead of fact.
Q3: Did Al Jazeera’s use of a hidden camera in its investigation constitute an illegal intrusion on any of its sources’ expectations of privacy? Note 3 specific examples of hidden camera video used in the piece and briefly analyze each. (20 points)
Dr. Nicholas Fox (9:29) who admitted to being able to provide EPO, Insulin and Testosterone which are all banned drugs under the governing bodies of most sports.
He also talked about the golden girls, who were contacted and then strongly denied the allegations. Dr. Fox was reached out to later for a response to his statements on camera to which he claimed to have lied and has never met professional athletes and is not able to get any of the drugs. His response proves that he never gave consent to be filmed and for his comments to be made public while he was consulting Liam Collins. Therefore, clear intrusion of privacy.
Charlie Sly - Doctor of pharmacy claims to be the main person of interest who prescribes several drugs (Delta 2) which is a drug on the MLB banned list that baseball and football players take (29:00)
Liam Collins recorded all the conversations with him wherein he claims to have helped Dustin Keller, Taylor TeaGarden, Ryan Howard, Ryan Zimmerman, James Harrison, Mike Neal, Julius Peppers, Clay Matthews and Peyton Manning
He mentions in detail which drugs most of the players he mentioned take and which ones take Delta 2.
In his recantation video, Charlie clearly mentions that these recordings were being made without his knowledge or consent and yet Al Jazeera plans to air it. He further denies any truth in any of his statements. Hence, another clear intrusion of privacy.
Chad Roberston, the pharmacist, accepts he has worked with top athletes and can make a normal man a world champion (13:00/24:10/27:20)
Chad not only mentions having worked with several athletes but also mentions his business venture he proposes to Liam Collins called Promed which promises to treat athletes that don't want to rely on their team doctors.
Chad claims he prescribes drugs under false claims of exhaustion and low fertility and several drugs that should only be prescribed by a doctor or are not even available for human consumption. Although Chad never responded to the team reaching out for clarification of his statements, it was a clear intrusion as there was a lack of consent within his private space to be filmed.
All of these acts would fall under intrusion, which includes the electronic invasion of seclusion when there’s a strong expectation of privacy in the vicinity, and there was no consent given from the three people above. Furthermore, newsworthiness does not justify intrusion.
Q4: If you had to defend this case to a jury – that is, 12 reasonable people who don’t know anything about journalism -- are there any specific ethical or professional issues that you think would cause you trouble? In other words, is there anything Al Jazeera did that represent poor or questionable editorial judgment? (10 points)
No consent was obtained from any of the people recorded, and the fact that they were recorded not only in private spaces but in spaces where they felt comfortable sharing the information provided is a definite ethical concern.
Advocating hidden camera use for investigation or not publishing a statement that explains why they resorted to hidden camera use is a professional issue.
The lack of anonymity in any of the sources is a professional and ethical issue as it makes AlJazeera much more liable for defamation cases and makes the documentary detrimental to the reputation of many athletes. This compromise of anonymity for the sake of an impactful documentary remains a major issue to the ethical nature of the investigation, and to the professional reputation of AlJazeera
Another issue is the lack of consideration towards the various privacy instructions/defamations that should not be expected of a journalist; juries know law, and they know that according to the Sullivan case reading, ‘The constitution doesn’t protect libelous publications’ and - according to the Florida Star vs B.J.F case - that journalists are allowed to collect truthful information that is potentially publically significant if it is done lawfully, so if they were to go to court with a defamation claim a huge challenge they would face is the lack of lawfulness posed in the way the documentary was conducted.