‘Dateline’ decision may take edge off paparazzi law, ‘Food Lion’

Tuesday, June 22, 1999

Press advocates say a recent California appellate court decision that dismissed invasion-of-privacy claims against reporters who secretly videotaped a lunchtime sales pitch shows that investigative journalism can continue despite a new paparazzi law and the infamous Food Lion case.

The California Court of Appeal for the Second District ruled on April 30 that reporters from NBC's “Dateline” who posed as investors and recorded their business meeting at an outdoor restaurant were not liable.

“I think it is some good news for those who were afraid that any kind of consumer-oriented investigative journalism using remote or hidden cameras was going to shut down because of the new paparazzi law,” said Terry Francke, general counsel for the California First Amendment Coalition. “This kind of business-related, fraud-related reporting … is going to continue.”

The new California paparazzi measure — signed into law last October — and the decision in Food Lion v. Capital Cities/ABC Inc. have left many press advocates concerned about what constitutes proper newsgathering efforts.

The paparazzi law defines invasion of privacy as trespassing with the intent to capture audio or video images of a celebrity or a crime victim engaging in personal or family activity. It would allow the celebrity or crime victim to recover damages from the paparazzi and their employers.

In the 1997 Food Lion v. Capital Cities/ABC Inc. decision, a federal jury awarded the grocery chain $5.5 million in damages for fraud, trespass and breach of loyalty associated with a “PrimeTime Live” hidden-camera exposé. The suit alleged that staffers who took jobs at one of the North Carolina-based Food Lion stores to learn about company operations lied in order to get the jobs. A judge cut the damages award to $315,000. ABC is appealing.

The recent appellate-court decision in SimTel Communications v. National Broadcasting Co., shows, however, that, depending on the circumstances, investigative reporting using hidden cameras can continue.

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, said the decision in SimTel demonstrates that judges are prepared to make distinctions in such cases and not immediately rule against reporters because they hid cameras or tape recorders.

The California appellate court upheld a Los Angeles trial court's dismissal of a lawsuit filed against NBC by a telephone service company contending the network should be cited for invasion of privacy, fraud and eavesdropping.

Two “Dateline” reporters had posed as investors in 1994 to investigate the sale of supposedly toll-free 1-800 telephone numbers. According to court records, the reporters arranged a meeting with SimTel representatives Steve Wilkins and Thomas Scott. The reporters never revealed their occupations or motives, nor did Wilkins and Scott ask about their identities or affiliations.

The four met at a Malibu, Calif., restaurant and sat a table on the outdoor patio. Using unobtrusive microphones and cameras, the reporters videotaped the lunch meeting.

On Oct. 4, 1994, “Dateline” broadcast part of the lunchtime conversation in a report called “Hardcore Hustle,” showing how SimTel and other companies sometimes charge users of the 1-800 phone lines, often without their knowledge.

In its decision, the court cited the recent state Supreme Court decision in Shulman v. Group W Productions, a case involving the videotaping of a woman receiving emergency care after a car accident.

The court noted that, in order to find NBC at fault, the alleged intrusion must have involved a private place, conversation or matter and must have occurred in a manner highly offensive to a reasonable person. The court said that Wilkins and Scott had proved neither point. The court also denied the two men's claim that the report revealed confidential information.

Instead, the court said that the report offered information that was of “legitimate public interest” and that the video of the sales pitch — complete with Wilkins' and Scott's names and likenesses — added authenticity.

“It showed who was making the presentation, what they were saying, and how they were saying it,” the court wrote. “The broadcast showed the verbal and nonverbal communication of the salesmen as they were making their presentation. It turned an abstract story into something the public could more readily understand by making it more concrete.”

Neither “Dateline” officials nor Neville Johnson, attorney for Wilkins and Scott, returned calls for comment.

Kirtley said that while the recent decision is binding only in California, it illustrates how the dynamics of privacy play out in court. News organizations, she said, may not have to worry so much about the courts automatically ruling against them on privacy issues.

“I think this case bodes very well” for those who were worried that the courts would adopt an expansive interpretation of the law,” Kirtley said.

“There [are] only a limited number of situations where the law would apply, and [they aren't] in newsgathering aspects,” she said.