Other newsgathering concerns -- Defenses

Other newsgathering concerns

Subjects of news stories sometimes sue news organizations under other causes of action, such as fraud or trespass. These claims have proceeded with varying success. In a case involving a hidden-camera investigation by ABC News that revealed a grocery chain’s unsafe practices, a federal appeals court rejected a fraud claim but allowed nominal damages for claims of trespass and breach of the duty of loyalty. The court said that ABC News employees who gained employment with the grocer and videotaped nonpublic areas of the store could be liable for only $2 in damages.¹⁷

Journalists should be mindful of privacy issues when engaging in “ride-alongs” with law enforcement officials. In 1997, the U.S. Court of Appeals in San Francisco (9th Cir.) held that members of a television news camera crew who taped the execution of a search warrant on private property were so closely aligned with the law enforcement officers that they became “state actors” who could be held liable for civil rights violations. The Supreme Court reviewed the case and held that police officers could be liable for bringing the media inside a home, but the Court declined to rule on the liability of the media defendants. The case ultimately settled out of court.¹⁸

Defenses

If a person consents, there can be no invasion of privacy. However, the reporter should be sure that the subject has consented not only to the interview, but to the publishing or airing of the interview or photographs as well. When minors or legally incompetent people are involved, the consent of a parent or guardian may be necessary. A written release is essential for use of pictures or private information in advertising or other commercial contexts.

Truth can be a defense, but only in false light cases. A litigant claiming false light invasion of privacy who is involved in a matter of public interest must prove that the media intentionally or recklessly made erroneous statements about him. However, truth is not a defense to a claim based on publication of private facts.

If the public has a legitimate interest in the story as it was reported, newsworthiness can be a defense to the charge of invasion of privacy. But if the report of legitimate public interest includes gratuitous private information, publication of those private facts may be actionable.

Notes:

17. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999); see also WDIA Corp. v. McGraw-Hill, Inc., 34 F. Supp. 2d 612 (S.D. Ohio 1999) (refusing to award punitive damages in case against magazine found to have committed fraud in the pursuit of news), aff’d, 202 F.3d 271 (6th Cir. 2000).

18. Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997), vacated, 526 U.S. 808 (1999), remanded to 188 F.3d 1155 (9th Cir. 1999) (en banc).