The life, career, and death of Michael Jackson has had its ups and downs and has consistently been a topic of controversy over the years. Most recently, the late entertainer was sprung back into the spotlight when HBO released the documentary, “Leaving Neverland” in January 2019. “Leaving Neverland” told the story of the alleged sexual abuse Jackson inflicted on two young boys during the height of his stardom back in the early 90s. The documentary received positive reviews by the many who put aside their love for the singer to watch the piece all the way through. However, the Jackson family did not feel the same. In February, the Jackson estate filed a $100 million lawsuit against HBO, accusing them of violating a non-disparagement clause from a 1992 contract for a concert film from Jackson’s “Dangerous” tour, according to Variety.

The Legal Definition Of Disparagement is, “the publication of false and injurious statements that are derogatory of another’s property, business, or product.” Sounds very similar to defamation, right? A non-disparagement clause is a common contract provision that “specifically enjoins a departing employee or contractor from making any statements that could possibly either harm your company’s goodwill or malign you or your business,” according to NOLO. In this case, the non-disparagement agreement means that HBO is not allowed to make statements or claims that would harm Jackson’s reputation.

In different circumstances, the Jackson estate could have sued HBO for defamation. However, HBO is immune from a defamation claim because Jackson is no longer living. So, a violation of a non-disparagement claim is the next best way to sue for the protection of Jackson’s beloved image and reputation, but will it work? According to Variety, the estate is pressing for a public arbitration of the issue.  

Back in 1992, HBO made a deal with Jackson to produce and release a concert special film known as, “Live In Bucharest: The Dangerous Tour”. Within the contract, HBO agreed to the non-disparagement clause. However, HBO now argues that they held up their end of the bargain in regards to that film, noting that the contract has been expired for a long time, and even adding that they have not aired the film since 1992, according to Variety.

The New York Times reports that HBO’s lawyers have asked Judge George H. Wu of the United States District Court in Los Angeles to deny the request for arbitration. The Jackson estate, on the other hand, is making claims that HBO is coming from a place of fear.

“HBO’s opposition clearly shows that they are afraid to have this matter adjudicated because it will expose the falsity of the documentary,” Bryan J. Freedman, an attorney for the Jackson estate, said in a quote published by The New York Times.

One could also argue that Jackson’s estate is afraid too as it took quite a hit after “Leaving Neverland” was released. In 2017, Billboard estimated that Jackson’s music generates $20 million to $25 million per year and his estate has earned more than $2 billion since his passing.

However, since the documentary’s release some things have changed. For one thing, radio stations all over the world have chosen to stop playing his music. This doesn’t seem all that bad considering the move from radio to streaming in recent years, but it has affected smaller markets in Montreal. According to BuzzFeed News, Cogeco, a Canadian telecommunications company, has taken Jackson’s music off it’s airwaves reaching 5 million listeners a week in response to listeners comments on claims made in the documentary. In addition, BuzzFeed News also reports that two other Montreal-based radio stations and some stations in New Zealand have also pulled Jackson’s music.

Other areas of revenue for the estate have also been affected by “Leaving Neverland”. The Simpsons pulled one of their episodes featuring Jackson’s voice and Louis Vuitton decided to drop its Michael Jackson-inspired 2019 collection, according to BuzzFeed News. Not to mention, Neverland Ranch, Jackson’s famous home, went back on the market after the documentary’s release. It was listed for $31 million, less than half of its previous listing price, according to Business Insider.

Even Oprah Winfrey herself chose to place her full support in the documentary despite the public backlash she knew she would receive. Oprah hosted a post-film interview on HBO with Wade Robson and James Safechuck, the men who claimed Michael Jackson sexually abused them during their youth. According to Vanity Fair, Oprah admitted that she had not received that much “hateration” since the episode where Ellen DeGeneres came out.

It’s no secret that Jackson’s reputation was in constant attack during his career because of sexual abuse allegations. However, in the past, Jackson was always able to settle outside of court or use star witnesses like Home Alone’s Macaulay Culkin to get acquitted of charges. His defense of choice was always that people were lying about him in order to get money out of him.

In “Leaving Neverland”, both Robson and Safechuck admitted that in the past, they lied on the witness stand in court about their relationship with Jackson in order to protect him. They admitted that at the time, they believed that he truly loved them and they did not want him to go to jail for what he had done, also noting that Jackson had told them they would go to jail too if he was found guilty.

So, can the Jackson estate win this lawsuit over HBO? Considering the non-disparagement claim was intended for the deal regarding the concert film from 1992, it doesn’t seem likely that a judge will see that it applies to “Leaving Neverland”.

UPDATE: I stand corrected. On Monday December 9th, 2020,  the 9th U.S. Circuit Court of Appeals affirmed the Judge’s decision to side with the Jackson Estate after HBO filed a motion to strike the complaint under California’s anti-SLAPP statute, according to The Hollywood Reporter.

“The parties do not dispute that the 1992 Live in Bucharest contract at issue was a product of mutual consent and included a broad arbitration provision,” states the decision, “An arbitration clause can still bind the parties, even if the parties fully performed the contract years ago. … HBO does not dispute the existence of a valid agreement, the included arbitration provision, or the incorporated confidentiality provision, but rather the ‘continuing validity’ of the agreement and the arbitration provision. Thus, a valid arbitration agreement exists.”

The attorneys for the Jackson Estate were very pleased with this decision and stated, “It’s time for HBO to answer for the violation of its obligations to Michael Jackson.”

We will continue to keep you updated as the two parties head to arbitration. As it stands currently, it is not looking good for HBO as non-disparagement are very much enforceable.

If you have been a victim of defamation and seek legal assistance, Contact the Internet defamation attorneys at RM Warner Law today. We know how to help.