The problem presented on this appeal is the liability of a radio broadcasting company for defamatory remarks by an employee of a lessee of its facilities. The question arises for the first time in this jurisdiction. According to the majority holding, radio broadcasting stations are similar to disseminators or news vendors and therefore liable only for negligence. I cannot agree with that view and believe liability should be absolute regardless of fault.
Stringent as it may be, this rule is justified by the almost limitless publication which radio broadcasting achieves. In a fleeting minute a defamatory remark is spread to the general public without effective means of retraction. Thus radio broadcasting compares to libel in its widespread publication, obtained in the latter case through written communications. On the other hand, being spoken, whether from *Page 703 manuscript or not, it resembles slander. The nature of this defamation, therefore, does not permit its identification as libel or slander and to be properly treated should be classed as a distinct and new problem.
Free and unimpeded broadcasting is desirable but adequate responsibility should be fully provided for. A broadcasting company cannot allow the passing parade of known and unknown voices to utilize its facilities and then seek immunity simply because it acted in good faith and exercised reasonable care. The fact that there is federal regulation of radio broadcasting does not afford any ground for relaxing liability but points to the public interest inherent in such activity.
Liability without fault has been imposed in other jurisdictions on radio broadcasting companies for defamatory broadcasts by persons beyond their control. Sorensen v. Wood,123 Neb. 348; 243 N.W. Rep. 83; Miles v. Wasmer, Inc., 172 Wn. 466; 20 Pac. Rep. (2d) 847; Coffey v. Midland BroadcastingCo., 8 Fed. Supp. 889. The result so reached, in my opinion, is more logical and preferable to the contrary finding in SummitHotel Co. v. National Broadcasting Co., 336 Pa. 182; 8 Atl.Rep. (2d) 302.
Attempt is made to categorize defamation by radio as dissemination by news vendors and book sellers. This approach seeks to apply prevailing principles of the law of libel, which are inapplicable, and overlooks the distinguishing and unique nature of radio broadcasting. The simultaneous pick-up and transmission by a broadcasting apparatus of the spoken word at its inception is certainly to be differentiated from the activity of a news vendor, who acts subsequently and only incidentally to the original written defamation. That distinction was recognized in Summit Hotel Co. v. National Broadcasting Co., supra, although it went on to reject the rule of absolute liability.
There does not seem to be any disagreement as to the justification and public policy underlying the rule of absolute liability in cases of the instant type but rather a reluctance to impose the more exacting rule, upon the reasoning that if this is the degree of liability to be established, it should be *Page 704 the result of a legislative enactment rather than judicial declaration.
In the absence of statutory or constitutional restrictions, judicial determinations should be based upon a proper balancing and a full consideration of all the facts and interests involved, with due regard to their relation to and effect upon the public, and this is particularly true in the disposition of a question of novel impression where the stabilizing effect of prior decisions cannot be used as a foundation.
I am to reverse the conclusions reached below upon the ground of public policy. The defamation when transmitted by radio cannot effectively be eradicated by retraction or any other procedure. The utterance once made, the damage ensues. It could not have been made excepting for the use of the facilities and the equipment owned, maintained and provided by the broadcasting company. Its responsibility to the party injured should be definite, clear and absolute.
For affirmance — None.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, BODINE, DONGES, HEHER, COLIE, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, JJ. 12.
For reversal, not on opinion — WACHENFELD, SCHETTINO, JJ. 2.