Newsgathering Torts Flashcards
governing rule for newsgathering vs publishing
• governing rule: newsgathering activities do not receive the same level of 1st Am protection as publication – the 1st Am provides little to no protection for torts/crimes committed in the course of gathering news
o **you can’t just hide behind “it’s newsworthy!” to escape liability for torts committed while newsgathering (the press receives no special immunity/privilege)
o publication, on the other hand, is speech, and is therefore given greater protection – so once the media has obtained info, their right to publish it is generally protected by the 1st Am
elements for intrusion
o Elements
(1) intentional intrusion (physical or otherwise),
(2) solitude/seclusion ( must have an objectively reasonable expectation of privacy), and
(3) intrusion is highly offensive to a reasonable person
• courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news – the mere fact the intruder was in pursuit of a “story” does not, however, justify an otherwise offensive intrusion (depends as well on the particular method of investigation used) (Shulman)
• privacy is not, for purposes of this tort, an all-or nothing characteristic – it depends on the facts of the case (Shulman)
**note that the tort does not require publication, but the fact that the defendant’s conduct was done for the purposes of publication may influence the outcome
this gap is also filled by PDPF (which does require publication – see above)
rule on “reasonable expectation of privacy” for intrusion into the workplace
o rule: the fact that a workplace interaction might be witnessed by others does not necessarily defeat, for purposes of tort law, any reasonable expectation of privacy against covert videotaping by a journalist (Sanders)
it is not a given that investigative journalists necessarily commit a tort by secretly recording events and conversations in offices/stores/workplaces – whether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances
even so, a person who lacks a reasonable expectation of complete privacy in a convo may nevertheless have a claim for intrusion based on a reporter’s covert videotaping of that convo
intrusion rule for paparazzi
o rule for paparazzi: basically, public figures in public places have virtually no expectation of privacy
comments on trespass
o a person commits a trespass when he enters property in the possession of another without authorization or consent (generally only available to the possessor of the land)
o **trespass is a crime as well as a tort, and newsgatherers are occasionally prosecuted as in tort actions, the First Amendment usually provides no defense
what is the joint action test and when does it apply
o rule (media as govt actors): private parties may be held liable if they are deemed to have acted “under color of law”
o joint action test: satisfied when the plaintiff is able to establish an agreement/conspiracy btw a govt actor and a private party
key inquiry for wiretapping/eavesdropping
o key inquiry: whether there is a reasonable expectation of privacy
one-party vs all-party consent statutes for wiretapping/eavesdropping
o one party consent statutes: the Federal Electronic Communications Privacy Act, 18 U.S.C. sect. 2510 et seq., and many of the state statutes, permit a person to eavesdrop or wiretap a conversation to which he or she is a party (e.g. Tennessee)
these usually do not give rise to liability in newsgathering situations
o all party consent statutes: some states have stricter statutes that require consent of all parties (e.g., Maryland, California, Hawaii – if the device is installed in a private place)
**it is unclear whether a journalist in a one-party consent state may legally tape a phone call to a person in a state that requires consent of all parties
o under the federal act, even a taping by a participant may be illegal if it is done for the purpose of committing any criminal or tortious act
can the media be liable for publishing something that a separate source acquired illegally?
o rule: the fact that a publisher has obtained info in a manner lawful in itself but from a source that obtained it unlawfully does not suffice to remove the 1st Am shield from speech about a matter of public concern (Bartnicki)
so the publication is still legal even if the newsgathering wasn’t
key inquiry for misrepresentation
o key inquiry: whether there is a reasonable expectation of privacy
rule for misrep of mental health professionals
o rule: intentionally misrepresenting oneself as an associate of a mental health profession who has a close personal relationship with the person about whom one is seeking info is a serious type of misrep and must be distinguished from a reporter simply shading his motives when interviewing a potential news source (Taus)
rule for misrep in violating agreements
o violating agreements: journalists often gain access or information by agreeing to conditions – such informal agreements usually are not enforceable as contracts, and promises as to future actions generally are not actionable as misrepresentation
however, breach of such a promise could be actionable as misrepresentation if the promise was made with no intention of keeping it
rule for misrep in the workplace
o rule: trespass can also include a consented entrance with a subsequent breach of duty of loyalty (Food Lion)
rules governing negligent actions
o rule: negligence ordinarily is not a permissible basis of liability when the harm results from publication unless something more than ordinary negligence is shown
**different result when negligence is alleged with regard to news gathering efforts
o rule (RI): defendants may be held liable if their negligence causes a person to suffer delirium or insanity resulting in an uncontrollable impulse to commit suicide (Clift)
o Branch Davidian case – federal district judge held that media could be liable for deaths and injuries of federal agents if the media negligently alerted the Branch Davidians to an impending raid on the sect’s compound near Waco Texas
damages
o rule: damages may be awarded for tortious news gathering even if the information obtained is never published or broadcast
o **whether damages are recoverable depends on (1) whether the tort law permits them, and (2) whether the 1st Am permits them
