United States District Court, S.D. New York
[Copyrighted Material Omitted]
For Mitre Sports International Limited, Plaintiff: Jason J. Enzler, LEAD ATTORNEY, PRO HAC VICE, Constantine Cannon, LLP (DC), Washington, DC, USA; Jean Kim, Lloyd Edward Constantine, LEAD ATTORNEYS, Ankur Kapoor, Samuel Hamilton Rikkers, Constantine Cannon, P.C., New York, NY, USA; Namita Chadha, LEAD ATTORNEY, PRO HAC VICE, Chadha & Company, New Delhi India; Ross Alan Fisher, PRO HAC VICE, Constantine Cannon, LLP (DC), Washington, DC, USA.
For Home Box Office, Inc., Defendant: Slade R. Metcalf, LEAD ATTORNEY, Toby William Smith, Hogan & Hartson L.L.P.(NYC), New York, NY, USA; Christine Wagner, Hogan Lovells U.S. LLP (nyc), New York, NY, USA; Collin James Peng-Sue, Hogan Lovells U.S. LLP (nyc), New York, NY, USA; Katherine Mary Bolger, Levine Sullivan Koch & Schulz, LLP, New York, NY, USA; Rachel Fan Stern Strom, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY, USA.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE.
Plaintiff Mitre Sports International Limited (" Mitre" ) commenced this action against Defendant Home Box Office, Inc. (" HBO" ), alleging that Defendant's distribution of a portion of " Real Sports With Bryan Gumbel Episode #138" entitled " Children of the Industry" (" COI" ) on September 16, 2008 defamed Plaintiff by falsely portraying that Mitre employs child labor in the manufacture of Mitre soccer balls in India. Plaintiff moved for summary judgment that HBO defamed Mitre (ECF 244) and that Mitre is not a public figure (ECF 251). Defendant also moved for summary judgment on these two issues (ECF 230). Plaintiff's motion for summary judgment that it is not a public figure is GRANTED. Plaintiff's motion for summary judgment that Defendant defamed
Plaintiff is DENIED. Defendant's motion for summary judgment is DENIED.
The following facts are drawn from the parties' submissions in connection with the instant motions. The facts are undisputed unless otherwise noted.
A. The Parties
Mitre is a privately held sporting goods brand headquartered in the United Kingdom. (Compl. ¶ 2). Mitre is one of 15 sporting, fashion, and lifestyle brands owned by Pentland Group pic (" Pentland Group" ). (Mitre 56.1 Public Figure Stmt. ¶ 1). Among other sporting goods products, Mitre, though its licensees, sells Mitre-branded soccer balls worldwide, including in the United States. Id. Mitre has no U.S. subsidiaries. Id.
HBO owns and operates a premium pay television network, which produces and distributes, among other things, the monthly news magazine program Real Sports with Brian Gumbel (" Real Sports" ). (HBO 56.1 Stmt. ¶ 3). According to HBO, Real Sports " presents an inside look at the modern world of sports, highlighted by profiles on athletes and investigative pieces." (HBO 56.1 Stmt. ¶ 4).
B. The Segment
1. The Segment as Aired
On September 16, 2008, HBO aired Episode #138 of Real Sports, which included a segment entitled " Children of the Industry" (" COI" or the " Segment" ) regarding the use of child labor to stitch soccer balls in India. (Compl. ¶ ¶ 7, 10). The Segment discusses two child labor issues in India: (i) the use of low-paid child labor in Jalandhar, India to stitch soccer balls and (ii) debt-bondage in Meerut India, where children allegedly stitch soccer balls to pay off their parents' debts. Gumbel introduces the Segment by stating, " We start with a sobering look at a practice that is clearly illegal, and was supposedly done away with years ago, and that's child labor." Gumbel goes on to state that governments, manufacturers and retailers " are all letting it happen." Real Sports Correspondent Bernard Goldberg (" Goldberg" ) describes the situation: " In the slums of India, children as young as six spend their days crouched on dirt floors stitching soccer balls together." Children's rights advocate Kailash Satyarthi (" Satyarthi" ) adds, " They have no childhood. They have no freedom."
COI depicts the stories of several children in Jalandhar and Meerut, who allegedly stitch soccer balls for soccer companies, including Mitre. First, the Segment shows a twelve-year-old orphan, Manjeet, from Jalandhar, who COI claims is " a full-time soccer ball stitcher." Manjeet declares that she " ha[s] no choice but to work" and she can't go to school because her " grandparents are very old and [they] are very poor." COI informs viewers that Manjeet earns " about a nickel an hour" and " this is precisely why some soccer ball makers in India like hiring children instead of their parents." Furthermore, COI claims that " children are the cheapest source of labor. They are physically and mentally vulnerable. They cannot go on strike. They cannot form unions. So they
are docile, easy." COI then states that " Manjeet is making a ball for Mitre, one of the biggest soccer brands in the world, the preferred brand of the pros." COI continues with the story of other children in Jalandhar stitching soccer balls, stating, " We met dozens of kids making Mitre balls in Jalandhar, like brothers Deepu and Aman. And it's not just Mitre. We found at least ten international brands being stitched by kids here." No other soccer ball brands are mentioned in the Segment. Satyarthi comments that he would call this practice " slavery."
COI also portrays child labor in Meerut, " the second city of India's soccer ball industry." COI tells the story of ten-year-old Gurmeet Kumar, " an enslaved child stitcher [in Meerut] whose family 'sold his freedom' to a soccer ball manufacturer 'for less than a hundred dollars' to pay for medicine for his sick baby brother, who ultimately dies." COI then " informs viewers that Gurmeet was forced to quit school so he could pay off the loan from the 'soccer ball maker,' but that he will not be able to " because of the high interest rate demanded by the soccer ball maker." COI refers to this practice as " debt bondage," " slavery," " forced labor," and " indentured servitude," and states that " in Meerut, one of the most desperate places in India, it's as common as it is illegal." The hosts of COI then state that they " watched as other children in the village, children also in debt bondage to soccer ball makers, made their morning deliveries, bringing yesterday's finished balls to their masters, then leaving with that day's supply of raw materials."
COI describes Mitre as " the exclusive ball of the most prestigious league in the world, the English Premier League, as well as America's pro league, Major League Soccer." COI further comments that Mitre is " an industry leader off the field, too," and claims that " Mitre called a summit of the world's biggest soccer ball makers," in Atlanta and " they all pledged to stop using child labor." COI indicates that several companies, including Mitre, adopted a code of conduct requiring that child labor not be used by any of the suppliers that make soccer balls.
COI also includes an interview with Charlotte Ponticelli, then-Deputy Undersecretary for International Affairs at the U.S. Department of Labor. Ponticelli states that " [o]ne of the biggest hurdles you face addressing this problem is the fact that so much of it is hidden." Goldberg responds that " Real Sports was able to walk right into a stitching center in Jalandhar, where four kids not much older than ten were working for pennies a day. They were stitching Mitre Cobra model balls..." Goldberg then states that they " were able to buy several brands of balls that they saw being made by children in India, and federal import records reveal scores of shipments of balls from India's soccer cities to America's ports." Later on in the Segment, Goldberg says, " And the one thing [the sporting good company, the U.S. government and the stores] have in common is they all say, 'we didn't know.'" COI depicts Ponticelli's response to be, " Look, it's our responsibility. All of us have a role to play. But, you know, you could go around and say 'how do you let this happen.' When you find out it's happening, you work to address it." Raw footage of this interview shows that Ponticelli's complete response to Goldberg included, " Look, policies--policies and law are not only good, they're essential..."
Toward the end of the Segment, Goldberg asks: " Are we supposed to believe that Mitre, for instance, which is just one of the many companies that, that are involved in this...is going to know what's happening on a side street in Jalandhar, India? It's hard. It's very hard." Gumbel responds, " I understand that, but when they say they investigated it, are they just
lousy investigators or are they lying?" Goldberg concludes: " I don't believe they're lying...I honestly believe that Mitre and all the other companies would like this to be wiped out once and for all...But we found it. We found it..." Gumbel then asks, " How good can their investigations be? How hard can they be trying?" Goldberg responds, " I don't believe Mitre wants it to happen, but the subcontractors are a different story altogether. The subcontractors don't want to hire those kids' parents...They don't want to do that, because the kids are making a nickel an hour. The kids aren't yelling to organize..."
2. Research on and Filming of the Segment
Gul-e-Zehra Mamdani (" Mamdani" ), an associate producer for the Segment and Joseph Perskie (" Perskie" ), a coordinating producer at Real Sports, conducted research into the use of child labor in India from the summer of 2006 through the spring of 2007. (HBO 56.1 Stmt. ¶ 9). Perskie and Mamdani's research included conversations and meetings with journalists, NGOs and soccer ball contractors in India. (HBO 56.1 Stmt. ¶ ¶ 12, 13, 25). Mamdani provided detailed notes of her research and interviews for the Segment. (Mamdani Decl. ¶ ¶ 10, 33, 40, 48, 79). Mamdani's notes indicate that Veena Sharma, one of the researchers in Jalandhar, told her that she saw several balls, including Mitre balls, being stitched by children under the age of fourteen and that she saw more than two dozen children under the age of fourteen stitching Mitre soccer balls. (Mamdani Decl. ¶ 49). The head of Mitre's parent company stated that " no one could say that there is no child labor in the production of [Mitre's] product" ...