Before dealing with the specific aspects of this case it would be well to comment on some peripheral issues. First, there is no question. raised that there was a “publication” here of the allegedly defamatory-material or that the material is actually defamatory. See Code-§ 105-701. Secondly, defendant Crosley Broadcasting raises no issue with respect to Code § 105-712, as amended (Ga. L. 1949, p. 1137) which provides: “The owner, licensee or operator of a visual or sound radio-broadcasting station or network of stations, and the agеnts or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as part of a' visual or sound radio broadcast, by one other than - such owner,’ licensee, or op *234 erator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator or such agent or employee, has failed to exercise due care to prevent thе publication or utterance of such statement in such broadcast.” Although there are no decided cases in Georgia applying this provision, we think that the language “visual or sound radio broadcasting station” is sufficiently broad to encompass television stations and their broadcasts. 2 We find failure to exercise due care is sufficiently alleged (e.g., defendants “failed to exercise the slightest degree of care to prevent the publication. . .”) 3
Perhaps the most perplexing problem is whether defamatory material shown оn television should be classified as a libel, a slander or in some third category. Code § 105-701 provides that a libel is “expressed in print, or writing, or pictures, or signs” while Code § 105-702 states that slander is “oral defamation.” 4 It can be readily seen that there are some ele *235 ments of both libel and slander in this sort of television defamation. Courts in some other jurisdictions, however, seem content to attempt the squeezing of the defamatory remarks into the well worn libel or slander pigeonholes. See Leflar, 15 Ohio State L. J., supra, at 261.
Motion pictures involve an analogous situation. The only Georgia case involves a movie which did not name the plaintiff but which was widely advertised as being based on the book “I Am a Fugitive From a Georgia Chain Gang.”
Warner Bros. Pictures, Inc. v. Stanley,
The cases in other jurisdictions are uniformly in accord with this view but usually after a more extensive discussion of the issue. Kelly v. Lowe’s Inc., 76 FSupp. 473 (D. Mass.) (pic
*236
ture, “They Were Expendable” based on book which named plaintiff in foreword and appendix; partial consent license rejected) ; Merle v. Sociоlogical Research Film Corp.,
In television and radio cases, the courts have often bashd classification of the defamatory matter on whether or not a prepared script was used; a libel being found where script is used and “slander” where the extemporaneous remarks are made.
5
Compare Landau v. Columbia Broadcasting System, Inc.,
*237 Commerсial television began during the latter part of the decade beginning in 1940 and commercial radio less than forty years ago. Thus both media present new factual situations with respect to defamation, and we have pointed out above some of the difficulties that the courts have had in reconciling this type of defamation with the traditional libel-slander dichotomy. In truth, these new media pose new problems which cannot realistically be solved by resort thereto.
In Georgia, the libel and slander Code sections are a codificаtion of the common law.
Blackstock v. Fisher,
Our Supreme Court said when it recognized the right of a child to sue for injuries sustained while still in the mother's womb, that, in the absеnce of binding precedent, the court “will reach a decision based upon sound principles and fair deductions from the common law.” Per Duckworth, C. J., in
Tucker v. Howard L. Carmichael & Sons, Inc.,
As Holmes said, “[The law] is forever adopting new principles from life at one end, and it always retains old ones frоm history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.” The Common Law, 36 (1881). And Cardozo: “Unique situations can never have their answers ready made as in the complete letter-writing guides or the manuals of the art of conversation.” The Growth of the Law, 133 (1924). “Modification implies growth,” said Brandéis, “It is the life of the law.” State of Washington v. W. C. Dawson & Co.,
The genius of the common law has been its ability to meet the сhallenges posed by changing circumstances. Can there be any doubt that this situation poses one of those challenges? As was said by Judge Fuld in his concurring opinion in Hartmann v.
*239
Winchell,
Furthermore, the defendants here were presenting a dramatization of a “stale” news event (as opposed tо the reporting of “current” news at least partially in the public interest) and were presenting the dramatization for a profit. In such a situation there seems little doubt that entrepreneur or “non-fault” liability should be imposed as “The problem is purely one of allocating a probable or inevitable loss in such a manner as to entail the least hardship upon any individual and thus to preserve the social and economic resources of the community. . . Reputation may be harmed quite as much by a libel innocently or inadvertently published as by any other kind. Such a risk is properly allocated to those whose enterprises, operated for their own immediate profit, create it. Losses of this nature can be regarded as one of the expenses of the undertaking which caused it.” Donnelly, Defamation by Radio: A Reconsideration, 34 Iowa L. Rev. 12, 23-24 (1948).
This is the underlying basis of the traditional non-fault newspaper liability. Spring, Rights and Risks, § 24 (1956 Rev. Ed.); 69 Harv. L. Rev. 875, 902-913; Holmes, The Common Law 138-139 (1881). See
Southeastern Newspapers, Inc. v. Walker,
*240
The legislature recognized this new category in 1949 'with the enactment of Code Ann. § 105-712. It is significant that the statute, . quoted above, refers to “defamatory statements” rather than “libel” or “slander.” This recognition is also shown by part of the same legislative package (Ga. L. 1949, p. 1137; Code Ann. § 105-714) which purports to limit damage as follows: “In any action for damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only such actual consequential, or punitive damages as have been alleged and proved.” 9
*241 Count 1 alleged that in fact the prisoners were transferred in two railrоad cars, each of which had an iron screen across both ends behind which sat an armed guard. One unarmed guard was locked inside each car with the prisoners. The guards worked two six-hour shifts daily. Only two guards worked shifts inside the Capone car: plaintiff and one Head, who was allegedly the captain of the guard. In the drama, only one unarmed guard was shown locked inside the Capone car and it is alleged that this guard is not shown “as a person in authority such as the captain of the guard.”
Defendant attempts to characterize the situation аs an “alternative defamation” such as “Either A or B accepted the bribe.” It is admitted that liability in such a situation has not been adjudicated in Georgia heretofore but it is insisted that the majority of other jurisdictions would deny recovery. Plaintiff, on the other hand, contends that this is.a situation where one not named in the publication may show by extrinsic facts that the defamation applies to him. Such a showing is said to be a jury question.
On either theory we think that plaintiff should prevail.
The “extrinsic fact” approach is not new in Georgia. In the 1891 case of
Hardy v.
Williamson,
A number of other cases have held that, as a general rule, the question of whether the defamatory publication was referable to plaintiff by the use of extrinsic facts was a jury question.
Colvard v. Black,
No prior Georgia case appears to have presented the exact question involved here as to whether a dramatic presentation of an incident that actually happened may be defamatory. Here there is no allegation that plaintiff’s name was used (or that a similar name was used) or that the actor portraying the corrupted guard resembled plaintiff in any physical way. The presentation is not based on a book which names plaintiff, thus distinguishing this case from
Warner Bros. Pictures, Inc. v. Stanley,
And there is a dearth of authority in other jurisdictions. However, a substantially similar situation occurred when the motion picture “Rasputin—The Mad Monk” was produced. Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L. Rev. 581,
The English Court of Appeals upheld a sizable verdict for the Princess, stating that a sufficient identity was shown to support the jury verdict even though the defendant claimed that it did not know Princess Irina existed when the movie was produced.
Thus, the semi-fictional portrayal of a real life event is fraught with the possibility that the publiс, or at least that segment of the public that knows the plaintiff, will believe that the presentation refers to the plaintiff. See, Restatement, Torts, § 564 (d) and Illus. 4 (1938). This is peculiarly a question for the jury, and we cannot solve it here. We think that the plaintiff meets the “extrinsic fact” test on general demurrer when he alleges that he was identified because the corrupted guard was not shown in a position of authority.
But even considering that plaintiff is not sufficiently identified by extrinsic fact, we think that both of the unarmed guards who were stationed on the inside of the Capone сar during the transfer would be entitled to maintain an action. The question here is slightly different, involving the defamation of a small group. 11
*244 It is certainly true as contended by defendants that there is a split of authority on this question. See Neiman-Marcus v. Lait, 13 FRD 311, at 315 (SD, NY). There an interesting three-in-one suit on this point was presented. The suit was based on the book “U.S.A. Confidential,” which attributed certain immoralities to “some” of a department store’s nine models, to “most” of the store’s twenty-five men’s store salesmen and to 382 saleswomen. All nine of the models, fifteen of the salesmеn and thirty of the salesgirls were plaintiffs. The court upheld the right of action of the models and the salesmen, stating at page 315: “An imputation of gross immorality to some of a small group casts suspicion upon all, where no attempt is made to exclude the innocent.” Reliance was placed on Illustration 2 in Restatement, Torts, § 564 which is: “A newspaper publishes the statement that some member of B’s household has committed murder. In the absence of any circumstances indicating that some particular member of B’s household was referred to, the newspaper has defamed each member of B’s household.” 12 However, the suit was dismissed as *245 to the salesgirls because there the charge was generál (essentially “all”) aind the group was so large. See, Restatement of Torts, § 564, Ulus. 3.
Hardy v.
Williamson,
Not only does this case involve a new type of publication of defamatory matter (a “defamacast”), the paucity of cases in this area being fully discussed in Division 1, supra, but the form of the defamatory presentation (a dramatized account, depicting one person, of a factual occurrence where two persons participated) presents a situation for which we have found no precedent and cannot, we think, be placed in the relatively simple “A or B accepted the bribe” category. These reasons especially contribute to our holding that the plaintiff is entitled to have a jury assess his injury, if any. As Judge Kaufman said in upholding the actions by the models and men’s salesmen in Nieman-Marcus, supra, at 315: “This result seems to find support in logic and justice. . .”
It was not error to overrule the defendants’ general demurrer to count 1.
Turning to count 2, plaintiff is attempting to maintain his action as one of the group of sixteen guards involved in the *246 prison transfer. The size of the group has been said to be determinative in these cases. 69 Harv. L. Rev. 875, 894. While the group of fifteen men’s store salesmen of a total of twenty-five employed at the time of publication in Nieman-Marcus, 13 FRD 311, supra, is apparently the largest group whose right of action has been upheld, we do not think that the size of this group of guards would prohibit recovery under the group defar mation theory approved in Division 2(b) of this opinion. The difficulty here is that, despite plaintiff’s ingenious attempts to pleаd around the problem, the defamation is simply not “of and concerning” plaintiff as a member of the sixteen-man group. As the factual statement shows, the only guard shown as corrputed is the guard inside the Capone car. The pleadings show that only two guards were ever utilized in this position-plaintiff and captain of the guard Head. While plaintiff may maintain his action on either basis outlined in Division 2 of this opinion (“extrinsic fact” or “group of two”) he cannot, for this factual reason, maintain it as a member of the group of sixteen. On this basis only, the count is essentially a repetition of count 1 and the gеneral demurrers were properly overruled.
Turning now to the special demurrers, we find that they deal with several areas of the petition:
Impression conveyed by telecast. These demurrers attack as conclusions allegations that the program conveyed the impression of factuality (Numbers 3, 10) or the impression that one of the guards on the train committed the crimes alluded to (Number 13) or that it was “readily apparent” from the first half of Part One that the defamation would continue through the remainder of Part One and Part Two (Numbers 7, 15). Plaintiff’s difficulty here is the problem of conveying in his petition what was transmitted in the broadcast. Determinative is what was said in
Warner Bros. Pictures, Inc. v. Stanley,
Inclusion of telegram. Attached as an exhibit and referred to in the petition is a telegram sent by the Director of the Bureau of Prisons to the President of the ABC network protesting “the totally unfounded implications” of Part One and requesting that Part Two not be shown. “Irrelevant and immaterial” (Numbers 8, 16) and “inflammatory and prejudicial” (Numbers 9, 17) is the attack made. We think the telegram from a public official presumably in a position to know the true facts illustrates the issue of care and also the issue of wilful and intentional defamatory publication.
Others. Demurrers contending that evidence is pled (Numbers 4, 11), that allegations are repetitious (Numbers 6, 14) and that the facts pled which are alleged to convey an impression of authenticity are not within the general knowledge of the public (Numbers 5, 12) have been considered, and are without merit.
There was no error in overruling all of the special demurrers.
Judgment affirmed.
Notes
Further support for this pоsition is found in the fact that the legislation is an almost in toto enactment of the “model act” suggested by the National Association of Radio and Television Broadcasters. Leflar, Radio and TV Defamation, 15 Ohio State L. J. 252, 267-269, n. 62 (1954); Remmers, Recent Legislative Trends in Defamation by Radio, 64 Harv. L. R. 727, 741, n. 71 (1951). The last authority notes the possibility of Federal pre-emption of the field.
Because the allegations apply to both defendants, we do not find it necessary to decide whether a failure to exercise due care must be alleged against the defendant television network under this section. See, Remmеrs, supra, note 1, at 752, n. 121. Several States have placed the burden of showing due care on the broadcaster. 9 Okla. L. Rev. 103, 106 (1956).
The legislation apparently makes at least the broadcaster’s liability comparable with that of a “secondary publisher” of printed libel.
“A libel differs from a slander, in that a publication may be libelous when, if spoken orally, it would not be slanderous. [Citations]. This distinction is said by the books to be based
*235
upon the grounds that a vocal utterance does not import the same quality of deliberation, and is more prone tо the ebullition of fleeting passion, mere effervescence or lack of mental equipoise, and to be accepted as indicative of feeling, rather than of conviction, and, therefore, not so much gravity is allowed to it as to words deliberately written down and published; the latter justifying the inference that they are the expression of settled conviction and affect the public mind correspondingly. So, too, an oral charge merely falls upon the ear, and the agency of the wrong-doer in inflicting injury comes to an end when his utterance has died on the ear, but not so with the written or printed charge, which may pass from hand to hand indefinitely, and may renew its youth, so to speak, as a defamation as long as the libel itself remains in existence, and hatch a new crop of slanders, to be blown hither and yon like thistledown at every sight of the libel, so that a printed slander, when published, takes a wider and more mischievous range than mere oral defamation, and is more reprehensible in the eyes of the law.” Ukman v. Daily Record Co.,
There is no specific allegatiоn here that a script was used although it is highly unlikely that any “dramatic” program such as “The Untouchables” could be presented without a script. It is alleged that Desilu Productions, Inc. “produced” the show. However, neither Desilu nor the sponsor nor the sponsor’s advertising agency nor any actor in the dramatic cast is named as. a party defendant. See: Spring, Rights and Risks, § 24 (1956 Rev. Ed.) where the actors, the sponsor and the sponsor’s advertising agency are said to be “primary publishers.” See: Remmers, 64 Harv. L. Rev., supra, at 753; 22 Law and Contemporary Problems, 539.
See, on the “capacity for harm” theory, 42 Va. L. Rev. 63 (1956); Restatement, Torts, § 568 (1938).
While this may be “a glossological illegitimate, a neological love-child”
(Morse v.
State,
The libel and slander classification case law is not controlling in such a category. However, the great body of the case law will not become obsolete, in the area, because certainly principles such as what is defamatory, what is privileged and sо forth will continue to apply. A more complete development of the rules dealing with “defamacast” will of necessity await later cases.
The meaning of “actual” or “actual consequential” damages (e.g., does this mean “special damages” as must be proved in many slander cases? See Code § 105-702) is not now before us and we express no opinion on the matter. See Remmers, 64 *241 Harv. L. Rev., supra, at 745. Note the absence of a comma between the words “actual” and “consequential.” However, a comma aрpears between these words in the caption of the act.
Defendant’s novel argument that portraying a woman as being raped is not any adverse implication against her chastity was brusquely rejected by the court (“. . . it takes real courage to argue [this point]” said Lord Justice Scrutton). This case and a number of others brought in different jurisdictions were later settled. Dean, Hatred, Ridicule or Contempt, 167 (1954).
There is apparently a distinction between defamation of a
group or restricted class,
as shown in Neiman-Marcus v. Lait, 13 FRD 311, discussed infra, and defamation of a
class.
For example, recovery was permitted one Jewish plaintiff where all
*244
Jews in Quebec
as a class
had been defamed and there were only 75 Jewish families in Quebec. Ortenberg v. Plamondon, 24 R.J.Q. 69, 385 (CBR Quebec). See, Developments in the Law: Defamation, 69 Harv. L. Rev. 875, 894-901 (1956); Wilner, Defamation of a Collectivity, 90 Pa. L. Rev. 414, 428 (1942). Cf.
Constitution Pub. Co. v. Leathers,
Also cited was a case where three store employees were lined up by the manager and told, “You are one of three who trifled with the money.” Recoveries by all three in separate suits were affirmed but only because the appellate court was equally divided. Montgomery Ward & Co. v. Harland,
The opinion upholding recovery relies on the 1850 case of
*245
Forbes v. Johnson,
In view of the court’s rationale as discussed in Division 2(a) of this opinion, it may be that this statement was dictum. Defendants admit that the rule enunciated in
Constitution Pub. Co. v. Leathers,