NEWS MEDIA UPDATE · CALIFORNIA · Privacy · Feb. 27, 2007
Court allows misrepresentation claim to proceed
Feb. 27, 2007 · The California Supreme Court on Monday allowed an invasion of privacy claim against a professor to proceed, leaving open the possibility that subjects of news reports could sue reporters who they say misrepresented themselves to obtain personal information.
The court ruled 5-2 that Nicole Taus, who claims professor Elizabeth Loftus lied to her foster mother in order to gain an interview, could sue Loftus for intruding into Taus’ private matters.
Media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief on behalf of Loftus, saying that allowing the lawsuit to go forward could harm reporters. The brief noted that sources who are unhappy with news reports sometimes claim after the fact that reporters misrepresented themselves, promised confidentiality, misquoted sources, or took statements out of context.
Chief Justice Ronald George, writing for the majority, said those concerns were “reasonable” and demonstrated the dangers of adopting an overbroad rule.
The court said its decision would not affect “the types of ruses that ordinarily may be employed in gathering news,” but concluded some especially egregious and offensive misrepresentations could expose the media to liability.
The court cited the example of an “unscrupulous or overly ambitious investigative reporter” who called a family member or close friend of a public official, pretending to be a doctor or paramedic to find out information about the person’s medical condition. Such an action, George wrote, could subject a reporter to an invasion of privacy lawsuit.
But Justice Carlos Moreno, writing for the two dissenters, said the hypothetical, “like the opinion in general, raises more questions than it answers.”
“How close a friend does one have to be in order for there to be a reasonable expectation of privacy in the information that the friend possesses?” Moreno wrote.
Moreno said Taus’ claim should be thrown out because she could not show she had a “reasonable expectation” that her foster mother would not reveal details about her childhood.
Permitting such suits, he said, “will likely chill vigorous journalistic investigation because of the inherently problematic relationship between journalists and their sources.”
Attorney Seth Berlin, who represented the media, said it is “hard to say” what effect the decision will have on the press.
“The line that the court attempted to draw between what is permitted and what is not is a little less clear than you might like in terms of making future predictions, even though it obviously displayed some great sensitivity to newsgathering by reporters,” he said.
On the whole, Berlin said, the decision was favorable to the media because the justices threw out Taus’ other privacy and libel claims, which a state intermediate court had said could proceed.
The intermediate court and a trial court had dismissed other claims brought in the 2003 lawsuit.
Taus sued after Loftus co-authored an article that was skeptical of a 1997 article that detailed Taus’ statements as a six-year-old that she was sexually abused by her mother and a subsequent interview in which a 17-year-old Taus initially could not recall the alleged abuse but later remembered the incidents.
Loftus, a critic of so-called repressed memories, examined Taus’ case – without printing her name – as an example of the danger of relying too heavily on individual case studies. Loftus questioned whether the abuse alleged ever occurred.
For the article, Loftus interviewed Taus’ foster mother, who claims Loftus falsely told her she was working with the psychologist who wrote the 1997 article. Loftus denies making any such misrepresentations.
(Taus v. Loftus, Amicus Counsel: Seth D. Berlin, Levine Sullivan Koch & Schulz LLP, Washington, D.C.) — RG