State Court Ruling May Limit Media Use of Hidden Cameras

In a blow to investigative journalism that relies on hidden cameras, the California Supreme Court ruled Thursday that using such tools may be an invasion of privacy.

Even people who talk in front of co-workers or others can have “a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters,” Justice Kathryn Mickle Werdegar wrote for a unanimous court.

The ruling opens the way to reinstating an award of $1.2 million in damages and attorney fees against ABC for an expose on telephone psychics.

An ABC employee, posing as a psychic, secretly videotaped the conversations of workers paid to give psychic advice over the telephone. In the conversations, some of the workers indicated that they did not take their psychic jobs very seriously. The reporter wore a camera in a flower on her hat and a microphone attached to her brassiere.

Two of the people depicted in the “PrimeTime Live” broadcast sued, claiming they were emotionally devastated by how they were portrayed. One, who had a previous drinking problem, resumed using alcohol after the broadcast and died, in what his lawyer characterized as a suicide by excessive drinking.

Media lawyers argued that the secret recording was legitimate not only because the topic was newsworthy, but also because the conversations being taped were not private--they were taking place in front of other people. A lower court had agreed with that argument, but the Supreme Court rejected it, ruling that subjects of hidden camera exposes can sue even if the conversations or events broadcast were not completely private.

Although the ruling has resurrected the ability of the plaintiffs to collect from ABC, the court stressed that it was not condemning all use of hidden cameras.

Werdegar noted that a violation of privacy requires that the invasion be “highly offensive to a reasonable person”--a question that would hinge in part on the motive of the media.

Television stations and others that use hidden cameras may still argue that the intrusion was justified by a legitimate need to gather news, the court said. But media lawyers said the uncertainty over whether a jury would accept that argument is likely to deter some stations from clandestine investigations in the future.

“It does make it difficult for the media to have a reasonably good sense going in of when they are operating on the safe side of the street,” said Lee Levine, a Washington-based attorney who represents media companies.

Hidden cameras are primarily used by television stations but have been used at times by magazines and newspapers. The Times prohibits their use.

Some news organizations will probably continue to use secret cameras if the journalists believe the stories are important, Levine said. Other broadcasters will be “scared off and important stories won’t be told, or at least won’t be told as convincingly or compellingly,” he added.

Larry Perret, news director at Los Angeles’ KCBS-TV Channel 2, which has used hidden cameras in a number of high-profile stories, agreed.

“It’s a shame that the courts are making it tougher and tougher for us to do our jobs,” he said. But, he added, “we tend to be cautious” about the use of hidden cameras, and the station currently has no stories in the works that involve them.

The station in recent years has made headlines with stories using hidden cameras--most notably in a 1997 expose of grossly unsanitary conditions at a number of Los Angeles restaurants. The report won the station numerous awards and was instrumental in getting the Los Angeles County Department of Health Services to establish a rating system for restaurants.

Hidden-camera reports have proved popular with many viewers. Because they draw large audiences, stations frequently schedule them during the three annual sweeps periods, which help determine the advertising rates stations can charge.

“This kind of report is important because if viewers see conditions for themselves, they will be able to see the truth in it,” said KTTV Channel 11 News Director Jose Rios. “If you make it harder to investigate things, then fewer things will be investigated.”

But critics have denounced the hidden cameras as more a gimmick than a news-gathering tool. Los Angeles lawyer Neville L. Johnson, who represented plaintiffs against ABC, said he hopes for a “chilling effect” on improper conduct “by journalists in search of ratings.”

Broadcasters “better think twice about doing hidden camera stings again,” he said.

Plaintiffs Mark Sanders and Naras F. Kersis filed suit against ABC after the network aired videotape of them while they worked as tele-psychics for the Psychic Marketing Group in Los Angeles. The two gave “readings” to customers who telephoned a 900 number for which they were charged by the minute.

ABC employee Stacy Lescht applied for and received a job with the company even though she had no psychic experience. The hotline trained her to read Tarot cards.

Other workers said she sometimes would stand on her chair and look around the room, a habit they found strange. They later learned she had been videotaping the office.

The company’s front doors were unlocked, but internal policy prohibited access by nonemployees. The psychics took their calls in a large room with rows and rows of cubicles. The workplace had a separate lunch room and enclosed offices for managers and supervisors.

“It is a shame that Kersis, who committed suicide during the trial and was the co-plaintiff, is not here to share this momentous decision,” Johnson said Thursday.

ABC, in a prepared statement, said it was considering a further appeal to the U.S. Supreme Court, on the grounds that the California ruling would violate the network’s free speech rights under the 1st Amendment. The network complained that the ruling “appears to suggest that the 1st Amendment doesn’t protect journalists to the same extent it protects other members of the public,” including employers who videotape their workers.

“Although the court recognized that ABC’s actions in this case could be ‘justified by the legitimate motive of gathering the news,’ we simply do not believe that our Constitution allows journalists to be treated more harshly under the law than other citizens,” the network statement said.

The California Supreme Court left it to the Court of Appeal in Los Angeles to review the jury award in the case and to consider other arguments.

ABC spokeswoman Eileen Murphy said the network is always “careful” in using hidden cameras.

“There are very strict requirements we have to go through here to get approval for a hidden camera piece,” Murphy said. “It is not something you can do just easily. Hopefully, this will not have any impact on the kind of work we can do.”

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Times staff writer Greg Braxton contributed to this story.