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Publication or broadcast of intercepted conversation not illegal

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  1. Libel and Privacy

    NMU         THIRD CIRCUIT         Privacy         Jan 13, 2000    

Publication or broadcast of intercepted conversation not illegal

  • Innocently received contents of an illegally taped conversation can be published or broadcast by the news media without subjecting the media to liability under federal wiretapping laws, according to a federal circuit court panel.

Newspapers and broadcasters that legally receive and subsequently publish or broadcast information obtained through an illegal interception of a private conversation are not liable for damages under the federal wiretap statute, according to a late December ruling from the U.S. Court of Appeals in Philadelphia (3rd Cir.).

The federal appellate court distinguished its case, in which media organizations innocently received the illegally intercepted information, from a late September ruling from a District of Columbia federal appellate case in which a member of Congress was held subject to damages under the federal wiretap statute for turning over tapes to the media of a conversation that he allegedly knew had been illegally intercepted.

The court noted that the D.C. Circuit case did not present the same issue, because there was no effort in that case to impose civil damages on The New York Times and other newspapers which had printed the details of an illegally intercepted conversation. The court concluded that “the government’s significant interest in protecting privacy is not sufficient to justify the serious burdens the damages provisions of the Wiretapping Acts place on free speech.”

Therefore, the court held, the wiretapping acts “may not constitutionally be applied to penalize the use or disclosure of illegally intercepted information” when the media does not “participate in or encourage” the illegal interception.

The case evolved from contract negotiations with teachers in the Wyoming Valley school district. Gloria Bartnicki, chief negotiator for the Teachers’ Union, using her cellular phone, had a conversation with Anthony F. Kane Jr., discussing teacher raises. The conversation was intercepted and recorded by an unknown person, and the tape was left in the mailbox of Jack Yocum, president of the local taxpayers’ association.

Yocum gave a copy of the tape to Fred Williams of WILF and Rob Neyhard of WARM, two local radio stations. The tape was eventually broadcast simultaneously over WILK and WGBI-AM as part of a news and public affairs talk show and was aired on some local television stations as well. Written transcripts were also published in newspapers.

Bartnicki and Kane sued Yocum, Williams, WILK, and WGBI in federal District Court in Scranton under both federal and state wiretapping and electronic communications laws seeking compensatory and punitive damages. The District Court certified questions to the federal appellate court — including whether subjecting the defendants to liability under the wiretapping statutes violates the First Amendment.

The appellate court noted that it “is likely that in many instances these provisions will deter the media from publishing even material that may lawfully be disclosed under the Wiretapping Acts.” Pointing out that reporters do not always know the “precise origins of information” the rely upon, and whether the information “stems from a lawful source,” the court found that such uncertainty could result in a “cautious reporter” electing not to report information of public concern.

(Bartnicki v. Vopper; Media Counsel: Raymond Wendolowski, Wilkes-Barre, Pa.)

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