Steele Hays, Justice.
This defamation case was brought by Andre Simon and Barry Smith, appellees, against KARK-TV of Little Rock, appellant. On the evening of August 11, 1982, while Smith and Simon were shopping in a store at the Galleria Shopping Center, the police received a call that the store was being robbed by two men. At about 8:30 p.m., eight policemen converged on the scene. They handcuffed and searched the appellees and placed them in a squad car. Carolyn Long, a reporter for KARKTV, happened to be in another business establishment two doors down. Information was relayed to her from someone who was listening to the police scanner that there was a potential robbery situation. Long met the camera crew that had been sent by the station and had the incident filmed. She questioned the police but got no comment from them. She then interviewed a clerk in the store from whom she got only some vague responses. The newsteam then left the scene. At 9:00 p.m., or shortly after, appellees were released when the officers decided that the caller was mistaken and no crime was in the making. The following report was broadcast on the ten o’clock news:
Quick action by Little Rock Police tonight stopped a robbery attempt at Custom Design at the Galleria Shopping Center. Details are sketchy, however it appears two suspects backed their car up to the store in order to rob it. For a time, the two men allegedly held a store clerk hostage. The clerk was shaken, and wasn’t sure about exactly what had happened.
The appellees were not named, but the newscast included scenes of the police placing the appellees in a squad car. It was stipulated the newscast was viewed by 82,0001 households. After trial the court entered judgment on a jury verdict against KARK awarding the appellees $12,500 each as compensatory damages. On appeal, we reverse and remand.
Appellants argue they were entitled to judgment as a matter of law because the news report was substantially accurate and was privileged. While we have recognized these concepts generally,2 we cannot say that under the facts in this case the news report as a matter of law was substantially accurate or that the matter was privileged. In Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982), quoting Prosser,3 we stated that literal truth was not necessary, that substantial truth will suffice. In Pritchard, we found that the gist or the “sting” of the defendant’s remarks was in essence true, although there were some minor conflicts in what was alleged. In contrast, the substance of this news story contained no truth at all. There was simply no robbery attempt and the appellants were in no way involved in any crime.
Appellants contend that they are given a common-law privilege under § 611 (h) of the Restatement of Torts, to report the fact of an arrest. However, we question the applicability of that section. There was no arrest in this case, appellees were only detained during a brief investigation. And whether this action by the police would be considered “official action” within § 611 (h) appears to be a new and unsettled question. See Medico v. Time, 509 F. Supp. 268 (E.D. Pa. 1980). But the privilege granted in § 611 is qualified and will be lost if abused by failure to give an accurate and fair report under § 611 (f). The report need not be precisely correct, as long as it is substantially correct. Appellant cites Williams v. WCAU-TV, 555 F. Supp. 198 (1983), where the broadcaster was granted summary judgment on the grounds that the broadcast was a fair and accurate report of official police action and the reports were substantially correct. There a neighborhood bank had been held up and the police arrested Williams, believing he was one of the three individuals involved. (The police subsequently established, before the newscast, that the plaintiff was not involved.) It was undisputed however that all of the facts in the broadcast were accurately reported. Here there was no robbery attempt, the appellees had not backed up their car to the store to rob (they had merely backed into a space). The clerk was never held as a hostage. Under these circumstances, if there was a privilege, we would have to find that it was lost.
Appellants also urge that the negligence instructions were improper and that in any case, the appellants were not negligent. The court instructed the jury on ordinary negligence and appellants contend that the proper instructions should have been the standard of a reasonably careful broadcaster in the community. We indicated in Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979) that within the latitude accorded in Gertz v. Robert Welch, 418 U.S. 323 (1974) in the case of a private individual, the ordinary negligence standard would measure the publisher’s liability. The court instructed the jury here that the defendant was held to the standard of care a reasonably careful person would exercise under circumstances similar to those shown by the evidence. Nothing suggests that the appellant was prevented from showing what the standard in the industry is and such proof would be evidence the jury could use in making their determination of whether there was a breach of the duty owed.4
Nor can we say as a matter of law that appellant was not negligent. We are thoroughly satisfied there was a sufficient basis to submit that issue to the jury. The initial information about a robbery in progress and possible hostage situation was relayed to the television station by way of reports heard on a police scanner. That information was put together with a reporter’s eyewitness account of the police taking the appellees into custody. The reporter could get no information from the officers at the scene nor could the producer of the news get any information verified by police headquarters. The story was written and shown a little over an hour later. We cannot say that a news report with its sources consisting of information from a police scanner, uncorroborated by police on the scene, in conjunction with an eyewitness account by a news reporter who did not know the surrounding circumstances of what she observed, will be found to be due care as a matter of law. We think the issue of negligence was properly submitted to the jury.
Appellant further argues that it is entitled to reversal as a matter of law because the appellees failed to demonstrate that they sustained a legally compensable injury as a proximate result of the news report. The appellant makes two points: first, that under Gertz, the court erred in not instructing the jury that the damages awarded must be for actual injury incurred. However, Gertz does not require such an instruction. The Supreme Court pointed out it would not define “actual injury,” but said it was not limited to out-of-pocket expenses and could include personal humiliation and mental anguish. Gertz does eliminate presumed damages and holds that damages must be proved by competent evidence. In the instructions this jury was told the appellees did have the burden of proving that they sustained damages. Such instructions clearly indicate that damages could not be presumed.
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Steele Hays, Justice.
This defamation case was brought by Andre Simon and Barry Smith, appellees, against KARK-TV of Little Rock, appellant. On the evening of August 11, 1982, while Smith and Simon were shopping in a store at the Galleria Shopping Center, the police received a call that the store was being robbed by two men. At about 8:30 p.m., eight policemen converged on the scene. They handcuffed and searched the appellees and placed them in a squad car. Carolyn Long, a reporter for KARKTV, happened to be in another business establishment two doors down. Information was relayed to her from someone who was listening to the police scanner that there was a potential robbery situation. Long met the camera crew that had been sent by the station and had the incident filmed. She questioned the police but got no comment from them. She then interviewed a clerk in the store from whom she got only some vague responses. The newsteam then left the scene. At 9:00 p.m., or shortly after, appellees were released when the officers decided that the caller was mistaken and no crime was in the making. The following report was broadcast on the ten o’clock news:
Quick action by Little Rock Police tonight stopped a robbery attempt at Custom Design at the Galleria Shopping Center. Details are sketchy, however it appears two suspects backed their car up to the store in order to rob it. For a time, the two men allegedly held a store clerk hostage. The clerk was shaken, and wasn’t sure about exactly what had happened.
The appellees were not named, but the newscast included scenes of the police placing the appellees in a squad car. It was stipulated the newscast was viewed by 82,0001 households. After trial the court entered judgment on a jury verdict against KARK awarding the appellees $12,500 each as compensatory damages. On appeal, we reverse and remand.
Appellants argue they were entitled to judgment as a matter of law because the news report was substantially accurate and was privileged. While we have recognized these concepts generally,2 we cannot say that under the facts in this case the news report as a matter of law was substantially accurate or that the matter was privileged. In Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982), quoting Prosser,3 we stated that literal truth was not necessary, that substantial truth will suffice. In Pritchard, we found that the gist or the “sting” of the defendant’s remarks was in essence true, although there were some minor conflicts in what was alleged. In contrast, the substance of this news story contained no truth at all. There was simply no robbery attempt and the appellants were in no way involved in any crime.
Appellants contend that they are given a common-law privilege under § 611 (h) of the Restatement of Torts, to report the fact of an arrest. However, we question the applicability of that section. There was no arrest in this case, appellees were only detained during a brief investigation. And whether this action by the police would be considered “official action” within § 611 (h) appears to be a new and unsettled question. See Medico v. Time, 509 F. Supp. 268 (E.D. Pa. 1980). But the privilege granted in § 611 is qualified and will be lost if abused by failure to give an accurate and fair report under § 611 (f). The report need not be precisely correct, as long as it is substantially correct. Appellant cites Williams v. WCAU-TV, 555 F. Supp. 198 (1983), where the broadcaster was granted summary judgment on the grounds that the broadcast was a fair and accurate report of official police action and the reports were substantially correct. There a neighborhood bank had been held up and the police arrested Williams, believing he was one of the three individuals involved. (The police subsequently established, before the newscast, that the plaintiff was not involved.) It was undisputed however that all of the facts in the broadcast were accurately reported. Here there was no robbery attempt, the appellees had not backed up their car to the store to rob (they had merely backed into a space). The clerk was never held as a hostage. Under these circumstances, if there was a privilege, we would have to find that it was lost.
Appellants also urge that the negligence instructions were improper and that in any case, the appellants were not negligent. The court instructed the jury on ordinary negligence and appellants contend that the proper instructions should have been the standard of a reasonably careful broadcaster in the community. We indicated in Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979) that within the latitude accorded in Gertz v. Robert Welch, 418 U.S. 323 (1974) in the case of a private individual, the ordinary negligence standard would measure the publisher’s liability. The court instructed the jury here that the defendant was held to the standard of care a reasonably careful person would exercise under circumstances similar to those shown by the evidence. Nothing suggests that the appellant was prevented from showing what the standard in the industry is and such proof would be evidence the jury could use in making their determination of whether there was a breach of the duty owed.4
Nor can we say as a matter of law that appellant was not negligent. We are thoroughly satisfied there was a sufficient basis to submit that issue to the jury. The initial information about a robbery in progress and possible hostage situation was relayed to the television station by way of reports heard on a police scanner. That information was put together with a reporter’s eyewitness account of the police taking the appellees into custody. The reporter could get no information from the officers at the scene nor could the producer of the news get any information verified by police headquarters. The story was written and shown a little over an hour later. We cannot say that a news report with its sources consisting of information from a police scanner, uncorroborated by police on the scene, in conjunction with an eyewitness account by a news reporter who did not know the surrounding circumstances of what she observed, will be found to be due care as a matter of law. We think the issue of negligence was properly submitted to the jury.
Appellant further argues that it is entitled to reversal as a matter of law because the appellees failed to demonstrate that they sustained a legally compensable injury as a proximate result of the news report. The appellant makes two points: first, that under Gertz, the court erred in not instructing the jury that the damages awarded must be for actual injury incurred. However, Gertz does not require such an instruction. The Supreme Court pointed out it would not define “actual injury,” but said it was not limited to out-of-pocket expenses and could include personal humiliation and mental anguish. Gertz does eliminate presumed damages and holds that damages must be proved by competent evidence. In the instructions this jury was told the appellees did have the burden of proving that they sustained damages. Such instructions clearly indicate that damages could not be presumed. Appellant’s second point, that no legally compensable injury was sustained, we cannot uphold. Addressing the question of constitutional limitations on the recovery of general damages, posed by the Gertz decision, Rest. 2d of Torts § 621 (b), states:
The court has not specifically defined actual injury, but it has explained that the term is not confined to out-of-pocket loss. It includes “impairment of reputation and standing in the community,” but this must be supported by competent evidence and cannot be presumed in the absence of proof. Unless the harm is pecuniary in nature, the evidence need not “assign an actual dollar value” to it. “Actual injury” is also held to include “personal humiliation, and mental anguish and suffering,” provided they are proved to have been sustained. The Constitution does not require proof of impairment of reputation before damages for emotional distress can be recovered.
Here, the appellees presented testimony of witnesses, giving their response to the broadcast, as well as the appellees’ own reactions to the broadcast. We think there was competent evidence presented to the jury on this question.
As their last point, appellants argue that the award of compensatory damages must be vacated and a new trial ordered. In Gertz it was held that an award of punitive damages could only be made where it was proven with convincing clarity that the defendant broadcast the story with “actual malice”. We reiterated that holding in Dodrill, that punitive damages are precluded except for the showing of knowledge of falsity or a reckless disregard for the truth. Because we find the record devoid of evidence of a clear and convincing nature that the defendant acted with “actual malice,” or with sufficient recklessness, it was therefore error to submit the issue of punitive damages to the jury. The jury’s refusal to award punitive damages would ordinarily render the error harmless, but appellees were permitted to present evidence of the appellant’s net worth. We have held on a number of occasions that where the issue of punitive damages is erroneously submitted to the jury, together with the defendant’s financial condition, an award of compensatory damages is tainted and cannot stand. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Life and Casualty Insurance Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). The case is reversed and remanded for further proceedings consistent with this opinion.
Dudley, J., concurs. Purtle, J., dissents.