Everything online journalists need to protect their legal rights. This free resource culls from all Reporters Committee resources and includes exclusive content on digital media law issues.
Closely related to the privacy tort of intrusion on seclusion is trespass. Whereas intrusion usually involves an electronic or mechanical invasion into the private affairs of another, trespass requires a physical invasion of someone's property. As with intrusion, the violation arises from the act of unauthorized entry, not from the publication of information obtained there.
Those who gather and disseminate information to the public do not have a privilege to trespass. The Supreme Court has consistently ruled that the First Amendment does not protect journalists from laws of “general applicability” that don’t specifically target the press, including trespass laws.
It is not a trespass to enter private property with the consent of the owner or possessor of the property. Usually, the possessor of private property is the owner, but a person who rents also “possesses” property and may grant or deny access to a rented property regardless of the actual owner’s wishes. Once a journalist or other enters private property to ask questions, he or she gains an implied consent to remain on the property if the property owner agrees to talk. These individuals may become trespassers, however, if they refuse to leave when asked.
People who misrepresent themselves so that they can "go undercover," usually as an employee or customer of a particular business, to expose wrongdoing at the company may also face liability for trespass. The courts are divided on this issue.
Keep in mind the following when you enter the property of another to gather information:
You may be liable for trespass when you go on private property, regardless of what you do with the information you gather there and whether you did any damage to the property.
Always be mindful of who is granting consent. In most cases, the authority of officials to enter private property to perform their duties does not extend by invitation to members of the public, including the media. This is particularly important to remember if you are riding along with the police.
Once you gain consent, do not exceed it. For example, if a drug store manager gives you permission to interview customers at the front check-out lines, you likely do not have consent to talk to those waiting in line at the pharmacy in the back of the store. Always leave when asked to do so.
Because the case law is so varied, you would be well-advised to contact an attorney in your state if you plan to misrepresent your identity so that you may "go undercover" at a company. (If you need help identifying a lawyer with experience in this area, contact the Reporters Committee for suggestions.)