Intrusion Upon Seclusion: Privacy Torts for Journalists

You can face a lawsuit over how you got a story, not only over what you published. Food Lion did not sue ABC for defamation. It focused on how ABC gathered its information ^[1]. Intrusion upon seclusion is the privacy claim that targets that kind of conduct.

This guide is general information. It is not legal advice.

What are the four privacy torts?

The Reporters Committee for Freedom of the Press says invasion of privacy is usually divided into four categories. They are intrusion, publication of private facts, false light and misappropriation ^[2].

Intrusion is the one that hits newsgathering. It concerns what you do to get the material.

That is why the Reporters Committee says an intrusion claim may arise whether or not a news story is ever published or aired ^[2]. A story you killed can still leave you exposed.

What does intrusion upon seclusion require?

Courts in different states use their own wording. California's Supreme Court gives a clear version. It says the claim has two elements. First, an intrusion into a private place, conversation or matter. Second, an intrusion made in a manner highly offensive to a reasonable person ^[3].

The ProJourn guide puts it much the same way. A journalist who intentionally intrudes, physically or otherwise, on another person's privacy may be liable if the intrusion would be highly offensive to a reasonable person ^[4].

The plaintiff also needs an expectation of privacy that makes sense. The California court said the tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source ^[3].

Put simply, a court asks three questions:

• Was this a private place, conversation or matter?
• Could the person reasonably expect to be left alone there?
• Was your method highly offensive to a reasonable person?

Other states may phrase the test differently. Check your state's law.

Where can you film, and where can't you?

Public space is the easier ground. The Reporters Committee says courts usually find that people have no reasonable expectation of privacy when they are in public ^[2].

California's Supreme Court applied that logic at an accident scene. It held that a camera operator's mere presence there, and filming of the events, could not be deemed a physical or sensory intrusion on the plaintiffs' seclusion ^[3].

Document · Supreme Court of California (hosted by Justia)

Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998)

Open at law.justia.com

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Private spaces are different. The same court said it knew of no law or custom that lets the press ride in ambulances or enter hospital rooms during treatment without the patient's consent ^[3].

Visibility matters too. PBS's Media Law 101 says entering someone's yard without consent would be trespass, but not intrusion, if the yard was visible to anyone driving down the street ^[5]. That shows the two claims are separate. You can avoid one and still commit the other.

If you need a simple way to show editors and sources that you work as a reporter, see how a press credential can document your work. It does not change the rules above.

Is a good story a defense?

Not by itself. A strong public-interest story does not erase an offensive method.

The California Supreme Court said that pursuing a story does not generally justify an otherwise offensive intrusion. It added that offensiveness depends on the particular method of investigation used ^[3].

The Ninth Circuit went further in Dietemann. It said the First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during newsgathering ^[6]. It also said the First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office ^[6].

In that case, the plaintiff was photographed with a hidden camera, without his consent, while he examined Mrs. Metcalf ^[6]. Courts look hard at that kind of method.

Does lying to get access make you liable?

It can. PBS's Media Law 101 says that if you lie to gain access to somewhere you would not otherwise be allowed to go, that is still trespassing ^[5].

Food Lion shows how this plays out. The grocery chain did not sue for defamation. It focused on how ABC gathered information, using claims for fraud, breach of duty of loyalty, trespass and unfair trade practices ^[1].

The Fourth Circuit affirmed the judgment that the two ABC reporters breached their duty of loyalty and committed a trespass ^[1]. It also said that even consent gained by misrepresentation is sometimes sufficient ^[1]. The word "sometimes" matters. Do not read that line as a safe harbor for lying.

The court also affirmed, on First Amendment grounds, the refusal to let Food Lion prove publication damages ^[1]. The case turned on conduct, not on the broadcast.

Where do hidden cameras, recorders and drones raise the risk?

Equipment raises the stakes because it can reach into spaces you cannot enter. California's Supreme Court said that on the question of recording equipment such as hidden cameras, its tort law provides no bright line. Each case must be taken on its facts ^[3].

A drone or remote camera is a clear example. PBS's Media Law 101 says using drones or other remote cameras or recording devices to capture footage on private property can be a form of intrusion upon seclusion ^[5].

Some states go further by statute. The ProJourn guide says 13 states currently prohibit the unauthorized installation or use of cameras in private places ^[4]. Find out whether your state is one of them before you set up a camera.

Video from Digital Media Law Project (Berkman Klein Center, Harvard; formerly Citizen Media Law Project). Open at youtube.com. Content from youtube.com loads only if you click.

Contact can also create trouble. The ProJourn guide says repeatedly contacting a subject to seek comment may be perceived as a violation of an antiharassment law ^[4]. Keep your requests for comment few and clear.

Do statutes add liability on top of common law?

Yes, in some states. California Civil Code section 1708.8 is one example.

Subdivision (a) covers physical invasion of privacy. A person is liable when they knowingly enter another person's land, or the airspace above it, without permission, or otherwise commit a trespass ^[7].

Subdivision (b) covers constructive invasion of privacy. A person is liable when they attempt to capture, in a manner offensive to a reasonable person, a visual image, sound recording or other physical impression ^[7].

If you live outside California, do not assume your state has no similar law. Check your state's law, and read it before you shoot.

Who is responsible when others help you?

You can answer for what someone else does on your behalf. Under section 1708.8, a person who directs, solicits, actually induces or actually causes another to violate the section's subdivisions (a), (b) or (c) is liable. That holds whether or not there is an employer-employee relationship ^[7].

For an independent journalist, that matters. A freelance photographer, a fixer or a source you send into a private space may create risk for you. Tell the people who work with you what methods are off limits.

Material from a third party is a separate question. The ProJourn guide says a journalist may generally publish information that a third party obtained illegally. Two conditions apply. The journalist must not have taken part in the original illegal act, and the issue must be a matter of public interest ^[4]. If you took part in getting it, that rule may not help you.

Step by step: how do you check privacy risk before you report?

Work through this list before you record, enter or follow up.

1. Name the place. Ask whether it is public, visible from public view, or private ^[2].
2. Ask whether anyone there could reasonably expect to be left alone ^[3].
3. Get permission to enter private property. Entering without it can be trespass even if the space is visible from the street ^[5].
4. Be honest about who you are. A lie to gain access can still be trespassing ^[5].
5. Confirm consent covers the interview and the publishing or airing of it and any photographs ^[2].
6. Think twice about hidden cameras and drones. Check your state's rules on cameras in private places ^[4].
7. Limit repeat contact. Too many requests for comment can look like harassment ^[4].
8. Brief anyone who works with you on what is off limits ^[7].

Keep notes on each decision. Write down why you chose the method you used. That record helps you and any lawyer you call.

The ProJourn guide is short. It covers cameras in private places, intrusion, harassment and illegally obtained information ^[4]. It makes a good checklist to keep on hand.

If you want to work with other independent reporters, you can join the National Press Association (it is free to apply).

What are the limits, and when should you call a lawyer?

This guide cannot tell you how a court will rule. On recording methods such as hidden cameras, California's Supreme Court said each case must be taken on its facts ^[3]. Your state's courts may treat these questions differently.

Call a media lawyer before you act if any of these apply:

• You plan to go undercover or use a false identity.
• You plan to use a hidden camera, a drone or a remote recorder.
• You need to enter private property, a hospital or a workplace.
• You have received a demand letter or a complaint.

A lawyer can look at your state's statutes and case law. That matters because the rules vary and a claim may reach you even if the story never runs ^[2].

The recorded webinar below is a general resource from groups that work on journalists' legal issues. Treat it as background, not as a source of current rules for your state.

If you need legal help, the Reporters Committee for Freedom of the Press runs a Legal Hotline for journalists and media lawyers ^[8].