Newsgathering Torts
1. Trespass
Element
*Entry of land in the possession of another
Cases:
Florida Publishing Co. v. Fletcher (Fla. 1976) p. 501
Le Mistral v. CBS (N.Y. App. 1978) pp. 501-502
2. Intrusion (the 4th invasion of privacy tort)
Elements
*Into plaintiff's solitude or seclusion
Cases:
Dietmann v. Time, Inc. (9th Cir. 1971) p. 503 and p. 504
Galella v. Onassis (2d Cir. 1973); (S.D.N.Y. 1982) p. 506 and p. 508
California Anti-paparazzi statute p. 508
Wilson v. Layne (1999) p. 509
Semanye's Case (1604): "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose."
Blackstone's Commentaries on the Laws of England: "the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of antient Rome. . . . For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private." (1765)
"The 4A embodies this centuries-old principle of respect for the privacy of the home: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . ."
Shulman v. Group W Productions, Inc. (Cal. 1998) pp. 514ff.
Automobile accident victims rescued by medivac helicopter. Video camera operator accompanied the medical team and the nurse wore a mike that picked up her conversation with Mrs. Shulman. Months later, the incident was broadcast on a documentary about “Emergency Response.”
Mrs. S. is suing for public disclosure of public facts and intrusion. Newsworthiness is a defense to the public disclosure action, but the Cal. Supreme Court thinks a jury should decide the intrusion issue.
Intrusion
*”intrusion into private place, conversation or matter”
no general expectation of privacy when being extricated from the car (plaintiffs did not own possess or control the property where the rescue took place)
plaintiffs may have had an expectation of privacy on the helicopter (functioning as an ambulance, which traditionally is a place with an expectation of privacy)
plaintiffs had a limited expectation of privacy in conversations throughout the rescue and the mike and recording present issues*”in a manner highly offensive to a reasonable person”
motivation/justification
blackmail, harassment and prurient curiosity are offensive--
newsgathering can be offensive; jury to decide whether (in this case) the mike and recording were offensive. The patient did not consent to being recorded, did not know she was being recorded, and was in a state of “vulnerability and confusion. Arguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers.” P. 518
[The parties reached a settlement, the terms of which were not disclosed.]
3. Eavesdropping and Wiretapping
CA Eavesdropping Statute: With respect to confidential communication, "there is a reasonable expectation that the content of the communication has been entrusted privately to the listener."
Case:
Deteresa v. American Broadcasting Co., Inc. (9th Cir. 1997) pp. 522-523
Sanders v. American Broadcasting Co., Inc. (Cal. 1999) pp. 530ff.
Stacy Lescht went undercover at “Psychic Marketing Group” with a hidden camera. About 100 employees sat in small cubicles in the same room (partitions 5 feet high) and gave psychic readings to persons calling the 900 number. Sanders gave readings, and she taped conversations with him without his knowledge or consent. She also taped a reading he gave her.
The jury found for Sanders on intrusion ($635,000), but the Ct. of Appeals reversed: Penal Code 632 “no reasonable expectation of privacy in his workplace conversations because such conversations could be overheard by others in the shared office space.”
Cal. Supreme Court reversed, finding that expectations of privacy are relative.
“This case raises squarely the question of an expectation of limited privacy. . . . There are degrees and nuances to societal recognition of our expectations of privacy. . . . Although the intrusion tort is often defined in terms of ‘seclusion’ the seclusion referred to need not be absolute. Like ‘privacy,’ the concept of seclusion is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.” Pp. 532-533
[Videotaping is problematic; even in a shared workplace, one has an expectation that secret videotaping is not going on.]
4. Using Tortiously Obtained Information
Case:
Bartnicki v. Vopper (2001) pp. 537ff.
Negotiations were going on between a school board and a teacher’s union in PA. A cell phone call from Bartnicki (union negotiator) to Kane (union president) was intercepted and recorded by an unknown person. Part of the conversation seemed to consist of ‘threats.’
“If they are not gonna to move to 3%, we’re gonna have to go to their, their homes. . . .To blow off their front porches, we’ll have to do some work on some of those guys. . . .” p. 537
The head of a tax payer’s group (who opposed the pay raise) found the recording in his mail box and gave it to Vopper (local radio talk show host) for broadcast. Then local newspapers picked up the story.
Bartnicki (and Kane) filed suit under federal and PA wiretapping acts—
“forbid(ing) interception by a party not a party to the conversation” and
providing for punishment for one who “intentionally discloses . . . the contents of any wire, oral or electronic communication.”
Both the D. Ct. and the Ct. App. Found the statutes to be unconstitutional “because they deterred significantly more speech than necessary to protect the privacy interests at stake.”
The S. Ct. affirmed. It accepted the submissions: 1. that the radio station was not involved in the interception, 2. that the radio station received the tape in a legal manner, and 3. that the subject matter was one of public concern. [It also agreed that the statute was content neutral and only intermediate scrutiny was necessary].
Precedents:
Daily Mail and Landmark Communications: “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.”
New York Times v. United States raises the issue of the burden of justifying prior restraint.
New York Times v. Sullivan: “[settled] proposition that freedom of expression upon public questions is secured by the First Amendment”
The Government’s interests:
1. “removing an incentive for parties to intercept private conversations”
The Court rejects this as a significant interest. Unlawful conduct is usually deterred by punishment, not prior restraint.
2. “interest in minimizing the harm to persons whose conversations have been illegally intercepted”
This is a better concern. “In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. . . .Fear . . . that one’s speech is being monitored by a stranger, . . . can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.” P. 541
But, IN BALANCING privacy vs. truthfully informing the public about matters of public concern, informing the public is the more important interest.
Therefore the statute is unconstitutional.
5. Fraud and Breach of Fiduciary Duty
Fraud: NC Unfair and Deceptive Trade Practices Act
Tort of Breach of Duty of Loyalty: "an employee has a duty to use her efforts, while working, for the service of her employer"
Case:
Food Lion, Inc. v. Capital Cities/ABC, Inc. (4th Cir. 1999)
pp. 549, 550-551, and 555