Outrageous conduct and severe emotional distress in private people

Sometimes the subjects of publications claim emotional distress as a separate tort independent from defamation or invasion of privacy. Courts have been reluctant, however, to recognize liability for the intangible harm of emotional distress, though they do occasionally do so where outrageous conduct by the media is thought to cause severe anxiety in private persons.

The standard for intentional infliction of emotional distress is extraordinarily high, and the facts that give rise to a claim must extend well beyond the notion that a particular reader is insulted or offended. Rather, a defendant’s conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

Although the media are seldom successfully sued for intentional infliction claims, courts have recently permitted private persons to pursue such suits over aggressive reporting practices, including the following:

• CBS broadcast on its show “Street Stories” a videotape of a woman’s conversation with a crisis intervention worker at the woman’s home after she was allegedly attacked by her husband. The woman claimed that the CBS camera crew misrepresented itself as a camera crew from the district attorney’s office. CBS and the woman settled the suit.

• An Orlando, Fla., television station broadcast a dramatic close-up of a local police chief lifting the skull of a six-year-old girl who had been abducted three years earlier from a box. The broadcast began with an emotional story about the memorial services held that day for the dead girl -- a broadcast her parents, wanting to see coverage of the services but not warned of the skull footage, watched in shock. The station settled with the parents for $175,000.

• Television journalists in California, knowing no adult was present, told three young children in their home that their neighbor had killed herself and her three children. 

• One Halloween, two California Highway Patrol officers circulated to friends and family members nine gruesome photographs of the corpse of an 18-year-old who was decapitated in a car accident. The images spread virally to more than 2,500 web sites and eventually reached the deceased teenager's family. (Although this case did not directly involve the media, it could nevertheless impact newsgathering and dissemination activities, particularly online, where, for the purposes of "vulgar spectacle," the photographs, the "subjects of Internet sensationalism," were "strewn about . . . like a malignant firestorm" and "spit back" at the family members, according to the court.)

Conversely, courts have found the following statements insufficiently outrageous to sustain emotional distress lawsuits against the media who published them:

• disclosing the identity of undercover narcotics agents;

• publishing -- in a report highlighting some of the modern technology available to help save lives and improve the health care of individuals treated in a local hospital's emergency room -- the details of the death of a patient who, despite the technological advances described, died in the emergency room;

• featuring a leading anti-pornography lobbyist as "Asshole of the Month" in an article accompanied by a small photograph of the woman superimposed over the rear end of a bent-over naked man; and

• stating that a murdered 17-year-old daughter had “no family support to encourage her to continue her education.”