“Our corporate image has been totally ruined.”
So says Foxconn spokesman Simon Hsing, arguing that the media should not have picked up or repeated the accusations laid forth in Mike Daisey’s now (semi)retracted narrative exposing the workplace environment at Foxconn.
“We have no plans to take legal action,” Hsing said, adding — ominously — “We hope nothing similar will happen again.”
Hsing’s statement makes it sounds like Foxconn is taking the high road. It’s not. It actually has certain very good reasons not to sue.
1. Proof of falsehood. In order to prove libel, the plaintiff has to prove the (written) statement was false. Anything that can be proved true cannot be libelous. Unfortunately for Foxconn, Daisey’s public radio piece is only one piece of the puzzle. Study after study has shown how dramatically difficult life inside Foxconn’s Forbidden City in Shenzhen. Complaints of excessive overtime are doubtlessly true. (Even Apple previously estimated that one-third of Foxconn’s Shenzhen workforce exceeded the 60-hour a week limit dictated both by Apple and Chinese law.) There is no doubt at least 18 (and probably more) workers have committed suicide on the premises. There is no doubt multiple Foxconn plants in China have sustained deadly explosions over the past couple years. There is no doubt Foxconn uses armed guards to patrol its campuses.
Even Daisey himself in his blog makes it clear he is being scapegoated as part of a clever bait-and-switch.
2. Lack of malice. Not only does US law require proving a published story was untrue, but winning damages requires proving the publisher had knowledge that the information was false, and yet published it anyway. Clearly, This American Life believed the contents of the story to be true. More than that, however, the story itself was based on a monologue developed and produced by Daisey as a staged play.
That makes the attempt to litigate awkward, to say the least. Daisey could invoke what is known as the fair comment and criticism defense, that the law protects his right to express opinion, regardless of how critical it appears. For its part,This American Life, having excerpted the play, could argue that its airing of Daisey’s story was artistic in nature, and an opinion, not reporting or documentary, and thus protected by fair comment.
3. American juries. The sight of a Chinese company suing American public radio in a US court would be surreal. It would also be a non-starter. No US jury would ever find for Foxconn, regardless of how strong a case the company could make. US workers see China as a source of its problems, not a solution. All the low-cost electronics and furniture would mean nothing to a group of 12 Americans armed with the knowledge that their country is deeply in hock to China thanks to the unlevel playing field that rewards companies like Foxconn. Provincialism cuts many ways. Foxconn is smart enough to know it would not win a libel fight on foreign turf.
“Our corporate image has been totally ruined.” No, that pretty much happened when your workers started throwing themselves off your roofs.
