Psychic seeks review of hidden-camera case dismissal

CALIFORNIA–A tele-psychic petitioned the state Supreme Court in mid-March to review the dismissal of his suit against American Broadcasting Companies, Inc., for invasion of privacy. A Los Angeles trial court judge had allowed a jury to decide the case on the “sub- tort” of freedom from “photographic invasion,” but an appellate court reversed the decision.

After being hired by Psychic Marketing Group in 1993, ABC reporter Stacy Lescht secretly videotaped conversations with co-worker Mark Sanders as part of an undercover investigation of fraud in the tele-psychic industry. A six-second excerpt from one of these conversations was included in a “Prime Time Live” broadcast about the industry. Sanders subsequently sued Lescht and ABC, alleging several tort claims. Before trial, the Superior Court of Los Angeles County found the broadcast legitimately newsworthy and true as to Sanders and dismissed all the causes of action except the charge of invasion of privacy.

Although the jury found that Sanders did not have an objectively reasonable expectation that the conversations would be confidential, the trial court suggested that Sanders had “the right to be free from photographic invasion.” The jury returned a verdict for Sanders and awarded damages of $1.2 million. ABC appealed, arguing that no such “sub-tort” exists and that, as a matter of law, any invasion of privacy claim must be based on a reasonable expectation that the conversation will be confidential.

In a 2-1 decision in late January, the California Court of Appeal in Los Angeles reversed the case, ruling that the jury decision that Sanders lacked an objectively reasonable expectation of privacy precludes any recovery. The court added that they were not presented with, nor could they find, any cases that support Sanders’ argument that reporters (or anyone else) cannot secretly photograph or videotape someone without the subject’s consent in situations where the subject lacks an objectively reasonable expectation of privacy. All of the cases cited by Sanders involved trespass, fraud or unauthorized intrusion into private areas, but the office in which Lescht secretly taped Sanders consisted of a series of open, three- sided cubicles divided by five foot high partitions. A standing adult could see the entire room and conversations were easily overheard, the court noted.

In his dissent, Judge P.J. Spencer said he would have upheld the trial court’s sub-tort of freedom from photographic invasion, stating that this theory took into consideration Sanders’ “autonomy privacy,” or freedom from unwarranted interference with private matters. Spencer stated that ABC could have protected Sanders’ autonomy privacy by merely playing the audio portion of the video or obscuring his face in the video. (Sanders v. ABC; Media Counsel: Andrew White, Los Angeles)