News Media Ruled Liable for Undue Intrusion

In a decision that may limit the news media’s use of hidden recording devices, the California Supreme Court ruled Monday that newspapers and television stations can be held liable for news gathering techniques that intrude on privacy.

The decision was aimed at so-called reality television shows--programs that follow emergency workers, police and fire officials to the scenes of misfortune and tape people, sometimes without their knowledge. But the impact could be considerably broader: Print photographs taken with particularly long lenses and investigative reports that use hidden cameras also could be affected.

The court held that newsworthy reports that are accurate are protected by the 1st Amendment from lawsuits that allege that the media illegally disclosed private facts. Media lawyers said that part of the decision was a victory for the news media because the court enhanced protection of reports involving private people caught in a newsworthy event.

But the court also held that subjects of news reports may sue the media for intrusion if reporters or photographers use offensive and intrusive methods to get the story.

“The state may not intrude into the proper sphere of the news media to dictate what they should publish and broadcast,” wrote Justice Kathryn Mickle Werdegar for the court, “but neither may the media play tyrant to the people by unlawfully spying on them in the name of news gathering.”

The 5-2 ruling will allow Palos Verdes resident Ruth Shulman, who was left a paraplegic in an auto accident, to pursue some of her claims against a broadcast company whose show about real-life rescues depicted her harrowing moments.

The court said Shulman is entitled to try to persuade a jury that taping her conversation with a rescue worker, who was wearing a microphone supplied by a television company both at the scene of the accident and inside a helicopter ambulance, was an illegal intrusion.

“Arguably the last thing an injured victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual viewers,” Werdegar wrote.

“No constitutional precedent or principle of which we are aware gives a reporter general license to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast,” she added.

The case produced four separate opinions. Two justices would have ruled against the media across the board, giving juries the right to decide what is newsworthy. Two others would have given the media broader protections.

Antony Stuart, Shulman’s lawyer, praised the court for recognizing that “the time has come to rein in the media” and consider personal privacy “more heavily than it has been in the past.” He predicted that the ruling would have a major impact on ride-along camera operators and producers with secret cameras.

“It has now been affirmed that the right to privacy exists in public places,” Stuart said.

Media lawyer Lee Levine praised the ruling for upholding the 1st Amendment rights of broadcasters and newspapers to publish newsworthy reports, but complained that the decision “will have a chilling effect on the use of reporting techniques.”

Because the legality of these reporting techniques will be decided on a case-by-case basis, the media have little guidance on which techniques can be used and which cannot, he said.

The proliferation of “reality-based” TV shows and the growing use of hidden cameras have prompted dozens of lawsuits across the country. Although the Shulman case did not directly address hidden cameras, a footnote in the ruling suggested that the court frowns upon them.

“Equipment such as hidden cameras and miniature cordless and directional microphones are powerful investigative tools for news gathering, but may also be used in ways that severely threaten personal privacy,” Werdegar wrote.

Rescue Aired on Television

Shulman and her son, Wayne, filed their lawsuit against Group W Productions after they discovered that their 1990 rescue had been broadcast on a nationally syndicated, now-defunct show called “On Scene: Emergency Response.” Ruth Shulman saw the segment months after the accident while she was still in the hospital recovering from her injuries.

The accident had left Ruth Shulman pinned under her family car. The broadcast showed her legs sticking out from under the car in a ditch alongside a freeway. A flight nurse who arrived at the scene on a helicopter ambulance wore a tiny microphone that recorded Shulman’s conversation and the communications with other rescue workers both at the accident scene and inside the helicopter.

Viewers could hear Shulman begging the nurse to let her die, but the video did not give her last name and showed her face only when it was partially obscured with an oxygen mask. Her son, who also was in the accident, suffered less severe injuries. His conversations were not recorded.

In their lawsuit, the Shulmans charged that Group W had illegally divulged private facts about them and illegally intruded on their privacy. A Court of Appeal held that Shulman could only argue that she had an expectation of privacy in the helicopter because the accident scene itself was a public place. The appeals court also said a jury should weigh the newsworthiness of the program against Shulman’s privacy rights.

But because the program was newsworthy and accurate, Shulman has no right to a trial on her claim that the program disclosed private facts, the justices ruled.

Although Shulman is a private person, the facts that were reported about her bore “a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance,” Werdegar wrote.

But the court went on to rule that Shulman can proceed with her claim of intrusion, both inside the helicopter and in the ditch by the road. The law of intrusion protects against an unwanted entry into a home or hospital room and eavesdropping, wiretapping and visual or photographic spying.

In a concurring opinion, Justice Joyce L. Kennard expressed concern with the holding that a report must be newsworthy to ward off lawsuits alleging illegal disclosure of private facts. Choosing which broadcasts should be protected and which should not would probably conflict with the 1st Amendment, she wrote.

Justices Ming W. Chin and Stanley Mosk said the media should have been given a complete victory in the case. “The event was newsworthy, and the ultimate broadcast was both dramatic and educational, rather than tawdry or embarrassing,” Chin wrote in an opinion signed by Mosk.

“To turn a jury loose on the defendants in this case is itself ‘highly offensive’ to me.”

By contrast, Justice Janice Rogers Brown wrote that Shulman should have been permitted to go to trial on all her claims and that a jury should have been allowed to make up its own mind whether the broadcast was newsworthy. Justice Marvin Baxter agreed.

The court, Brown complained, had sacrificed “the constitutional right to privacy on the altar of the 1st Amendment.”

Kelli L. Sager, who represented Group W in the case, said the media company expects to prevail at trial.

Shulman said she was pleased that she will have her day in court. The decision said “my pursuing this was justified,” said Shulman, 54, a rehabilitation consultant.