Module 66

In this module we'll touch on three areas:

• invasion of privacy
• access restrictions and rights
• libel and slander

In Part II of this topic we'll cover three more issues:

• staging
• copyright
• talent and location releases
  
  

Privacy: Public and Private Individuals

Even though the U.S. Constitution is the basis for our laws, the Constitution does not cover many issues that have come up since it was written and ratified in the late 1700s.

For example, the Constitution does not talk about a right of privacy or invasion of privacy. But, throughout the years courts have held that citizens need protection from the unwarranted or unjustified publication of images and information of a private nature.

When it comes to invasion of privacy, the laws that evolved make a distinction between private and public individuals. It also makes an distinction between public places, such as streets, parks and sidewalks and privately-owned areas, such as a store or a person's residence.

Once individuals enter the "public spotlight, " either intentionally or through accidental circumstances, they are afforded much less legal protection. We only need look at the supermarket tabloids to see this.

At first, it might seem that everyone should be afforded full protection from the public disclosure of private information. But, the problem arises when that "private" information relates to illegal or immoral conduct. For example,

• If a man is convicted of child molesting, can he claim it's private information?   If so, does he have a right to keep the press or Internet sites from disclosing that information (and the people in the neighborhood where he lives from knowing about it)?
   
• If a politician is found guilty of stealing money from the public treasury, do we have a right to know that (especially before the next election)? 
   
• If an evangelist who regularly preaches against illicit sex has sexual affairs, can he claim that this information is private and should not be publicly disclosed?

In these cases, many people feel that, not only does the public have a right to know these things, but that the press has a responsibility to bring such things to the public's attention.

Recognizing the crucial role that a free press has in maintaining a democratic system, U.S. courts have generally been quick to protect the news media's rights to gather and disseminate information -- as long as the information is true.

But, what if that information is true but voyeuristic in nature and intended primarily to generate ratings or the increased sales of a publication?

It has come as a surprise to many journalists that disclosing true and verifiable facts about someone can be an invasion of privacy.

To be so, the information must:

• be published, broadcast, or in some way disseminated to an audience

• consist of information of a private nature that is deemed offensive to a reasonable person
   
• consist of information that's not deemed newsworthy or of legitimate concern to the public
   

Disclosing that a private individual has AIDS, is a lesbian or a homosexual, may fall into this category, if such facts are not deemed relevant to any present newsworthy story.

Individuals have successfully sued news organizations when they disclosed information about mental retardation, plastic surgery, and in vitro fertilization -- information that a jury subsequently decided (in the specific circumstances involved) should have been kept private.

Juries are swayed by three factors:

1. How sympathetic they are to the particular plaintiff (complainant). Children and older people top that list; public figures rank near the bottom.

2. How extensive the intrusion is. Video ranks first, audio further down the list, and a narrative, especially if it doesn't specifically refer to the person claiming injury, ranks at the bottom.

3. How the reporter got the information. Juries tend to frown on reporters who were clearly trying to "dig up dirt," especially if they used questionable means to obtain the information.

All this assumes that the individual didn't freely disclose the information. If they did, or if the information could easily be obtained from public records, courts have generally not seen the disclosure of this information as being an invasion of privacy.

Intrusion

One type of invasion of privacy is intrusion, also referred to as intrusion on seclusion, or intrusion on solitude.

Overhearing and publicizing private conversations or broadcasting images taken from private property typically constitutes an invasion of privacy.  

A general guideline is that if you are on public property when you obtain the information or images and you do not use a long telephoto lens or a highly directional microphone, an invasion of privacy case would be hard to prove.

This is because an average citizen could have easily witnessed the same thing.

Things change, however, when you trespass onto private property where you haven't been invited, or when some type of sophisticated surveillance equipment is used.

Reporters often audio record in-person interviews and telephone conversations.

Although asking permission to record an interview may intimidate some people, it makes it possible for you to double-check quotes, and it's cheap insurance in case the person later claims that he or she was misquoted.

Recording telephone conversations can, of course, be done surreptitiously.

Many state laws stipulate that only one party -- which would generally be you -- need to know that the conversation is being taped. Some state laws, however, require that both parties know that the conversation is being taped.  In this case it would be illegal for a third party -- excluding law enforcement authorities with a court order -- to tap into phone conversations.

Access

We now turn to one of the grayest areas of the law and one that is most often encountered by news people -- access to locations.

If the location is on public property, there's generally no problem, unless you're seen as interfering with police or public safety officials. Thus, photographing a public demonstration, disaster, or even a crime scene under these conditions should be okay.

This does not mean that someone won't object or try to stop you, even though they don't have the legal authority to do so. Sometimes people, including the police, don't want an event or action publicized.

There have even been arrests in some of these situations. Even though the charges generally can't be sustained, the arrest effectively stops the reporter from covering the event. Thus, in these rare cases, the intended result is achieved.

During the Vietnam war many protesters were arrested in Washington and put in jail (including one of my TV production students at the time) because the Nixon administration didn't want the scope of the antiwar feelings to be obvious to the American public.

The arrested protesters were released the next day when it was determined that they were engaging in a perfectly legal action.

Once you move to private property, you need permission, either from the owner of the property or his "agent" (the person renting the property), or from police.

Court decisions often hold that members of the press (with or without press passes) have no legal privileges beyond those granted to the general public.

At the same time, public officials often grant recognized members of the press special privileges. Government officials even issue "press credentials" for working members of the press.

News people may decide to go onto private property in the pursuit of information or pictures -- until they are specifically asked to leave. Interestingly, courts have held that videographers will generally be allowed to broadcast any footage taken before they were asked to leave.

Sometimes a reporter may feel that a story is worth the risk of being arrested, and under certain circumstances courts have held that the ends (getting a story) justified the means (trespassing on private property).

However, in recent years there has been a more restrictive attitude toward press privileges. We'll get back to this a bit later.

It had always been assumed that if a law enforcement official that has taken charge of a crime scene grants you permission to go onto private property, a trespassing case won't hold up. A recent court case is the one exception here. In some rather unusual circumstances, a judge upheld a trespassing case against a network ENG crew -- even after a FBI agent specifically invited them to accompany them into an apartment during a drug bust.

   Guidelines for Intrusion

To conclude, let's look at some summary points (questions) that courts have deemed relevant in intrusion cases.

• Was what you heard or photographed also accessible to the average person standing on public property?
   
• Were you given permission by a responsible person to enter private property?
   
• Did you break the law when you could have gotten the information in a legal way?
   
• Was the information you got in the disputed circumstances newsworthy and of legitimate concern to the public?
   
• Was "prying" involved? (Prying goes beyond basic curiosity and moves into the area of offensive and inappropriate snooping into a private individual's personal life.)
   

• Is what you disclosed something that is generally agreed to be of a private nature?

• Would your alleged intrusion be deemed objectionable to a reasonable person?

Commercial Appropriation

Commercial appropriation (also know as misappropriation) involves an unauthorized use of an individual's or organization's prominence in order to benefit someone else.

The courts have recognized that well-known people acquire an identity that is of value and these people deserve to be protected from someone "cashing in" on that value without their consent.

Let's say you are doing a commercial for a restaurant or a health spa and you just happen to catch some well-known person in attendance. Obviously, the commercial would be much more influential if this person appeared to be endorsing this establishment. However, if you run the commercial without their permission, they could sue you. Celebrities often have sued and won damages in such cases.

If you were televising a public event and wanted to show general shots of the audience in attendance, there would be no problem, even if one of the members of the audience were well known. Individuals in this case are considered "background."

But, if one of the people in the audience was a well-known person and you appeared to go out of your way to bring this fact to the attention of the audience, you could be guilty of trying to "cash in on" the person's prominence.  

If the public figure is officially participating in an event being covered, he or she can be considered a part of the event. In such cases the camera shots may dwell on the person as much as they wish.

Shield Laws

Most states have some form of a shield law designed to keep courts or judges from forcing news people to reveal confidential sources of information.  At the same time, federal powers can supersede these laws. A thought provoking and dramatic production that deals with this topic is Nothing But the Truth.

A well-known investigative reporter in Washington who has written many stories about corruption and wrongdoing in high places noted that without the assurance that news people can protect the confidentiality of their sources, few people would be willing to risk their own welfare in revealing inside information about crime and corruption.

Plus, revealing a person's name who "blows the whistle" on wrongdoing might easily endanger that person's welfare, or, in some cases, even their life.

When ▲ whistle blowers know that a reporter can be legally forced to break a pledge of confidentiality they will probably think twice about tipping off reporters to wrongdoing.

For this reason many reporters -- some from the nation's top publications -- have chosen to go to prison rather than break a promise of confidentiality. Even though prison can disrupt a reporter's life in major ways, breaking a promise of confidentiality can also end the reporter's career in investigative journalism.

Because this issue strikes at the heart of a newsperson's obligation to expose corruption, we need to look at it more closely.

One of the latest court cases on this issue was in late 2004, when a judge found a reporter for an NBC affiliate guilty for contempt of court for not revealing the source of a FBI videotape that documented bribery and corruption in city government.

First, the judge levied a fine of $1,000 a day for every day the reporter refused to reveal his source. When that didn't work the judge brought the criminal contempt charge and threw the reporter in jail.

At the same time, the videotape resulted in people being convicted of their crimes and legal authorities feel that the reporter did not violate any law.

Reporters from The New York Times, the Los Angeles Times, Time magazine, the Associated Press, and cable news networks have all faced similar legal action in their attempts to bring to light wrongdoing.

In what has become the most celebrated case in history, an FBI source dubbed "deep throat" helped bring down a Presidency for engaging in clearly illegal actions. The source had the assurance of the Washington Post reporter that his involvement would be kept confidential -- and it was for decades until the person, himself, disclosed his involvement. (The award-winning movie, All the President's Men, dramatically documents this chapter in U.S. history.)

Today, many things further complicate this issue.

First, it's much more difficult to define "newsperson."

Although examples such as the ones cited above involve the mainstream press, some people now feel the term should extend to the Internet. So should bloggers be covered by shield laws?  And if bloggers, how about people gathering information for "tell-all" books? In short, where do you draw the line?

Next, there is the very important legal concept of being able to "face your accuser." If your accuser is held to be "confidential" by a newsperson, how do you face them and dispute their charges? 

All of these issues are now being debated in courts of law.

Defamation

Defamation is defined as the communication to a third party of false and injurious ideas that tend to lower the community's estimation of the person, expose the person to contempt or ridicule, or injure them in their personal, professional, or financial dealings.

Libel is defamation by written or printed word and is generally considered more serious than slander, which is defamation by spoken words or gestures.

Some recent court decisions, however, have removed much of the distinction between the two.

Local stations and networks have been sued for millions -- even billions of dollars over alleged slander or defamation.

In 1990, the median jury award against a news organization was $550,000.  Only six years later this figure had risen to $2.3 million.

Because even the cost of defending a libel or slander suit is often several hundred-thousand dollars, many stations and production agencies have insurance against libel and slander.

It is widely held that the injured person in defamation cases must be apparent to the audience, although not necessarily specifically named. The false statement must have been presented (or interpreted by an average reader/viewer) as fact, and not clearly intended as satire or fair comment.

Although negligence on the part of the journalist must generally be shown in these cases, so-called "honest mistakes" can also precipitate a legal action -- if it can be demonstrated that a false statement injured someone's good name, professional standing, or resulted in financial loss.

Negligence can range all the way from not taking the time to check facts or proofread copy before it was aired to the much more serious careless disregard for the truth.

Actual malice, which ranges from a careless disregard for the truth to an intent to cause injury, is the most serious form of defamation and results in more serious legal consequences.

The injured party in a defamation suit doesn't have to be a person, it can be a company or institution.

If you state that "all X-brand cars are lemons" or that a particular company produces food that will make you sick or kill you, you can expect to get a very official call from their lawyer.

Instead of saying that all X-brand are lemons, you would be much safer to say something that you could prove, such as "68% of all X-brand cars are in for repair within 30 days of their purchase."

In the case of the food, you could cite hospital records that indicate that 124 people in Peoria, Illinois were admitted to area hospitals after eating Miss Mollie Maple's Muffins.

But in both cases you want to make very certain that you can prove the accuracy of the statements.

False Light

False light is related to defamation. For example, if you are doing a story on drug addicts or prostitutes and film someone -- even in a public place -- who is neither, they can sue. 

By placing an identifiable person within the context of a topic that is illegal or can damage their reputation, you create a false link in the minds of viewers. Rather than risking court case to prove whether the person is or is not innocent, producers often pixilate faces to keep them from being recognized.

Confronting Lawsuits

It should be obvious that reporters and producers must carefully check any questionable material before broadcast or distribution. At one TV station the executive producer, the news director, and the station's attorneys view questionable segments.

If you are served a subpoena for alleged defamation, don't try to start explaining your way out of it. You can get yourself into deeper trouble. Also, never agree to hand over a tape or transcript of the segment in question unless ordered to by the court.

If things get this far, Immediately turn the matter over to an attorney who specializes in this area.

And never make a comment regarding the truth of the challenged statement to anyone except your lawyer. If a reporter says, "I'm really sorry, I was in a hurry and I guess I just didn't check my facts," this could constitute an admission of guilt -- even a "reckless disregard for the truth," which could constitute malice. Cases have been lost after such admissions.

Corrective Statements

If a definite error in fact is discovered after it has been broadcast, you may be able to reduce damages by immediately airing a full corrective statement with an apology.

Although this may not eliminate a lawsuit for a serious offense, it may serve to reduce the damages awarded.  

This file has some major summary points.