Ruling may constrain researchers
Scholars, journalists and other investigators may be held liable for invasion of privacy if they misrepresent themselves to obtain sensitive information, the California Supreme Court decided 5 to 2 on Monday.
A lawyer for the media said the ruling was troubling for both journalists and academics. Though the court drew a distinction between outright misrepresentation and more common practices in both fields, such as shading or withholding information about a researcher’s motives, it did not make clear under what circumstances professors and reporters would cross the line.
The ruling came in an invasion-of-privacy lawsuit against Elizabeth Loftus, a professor at UC Irvine. Loftus, an expert on memory, investigated a published case study by a psychiatrist who reported that a young woman he interviewed had recalled a repressed memory of being molested by her mother.
Skeptical of repressed memory, Loftus learned the identity of the woman and interviewed her former foster mother. The foster mother later claimed that she spoke to Loftus only because the professor had identified herself as an associate or supervisor of the psychiatrist who had reported the recovery of the memory.
Loftus denied the allegation, but the state high court said it was serious enough to warrant a trial. Pretending to be a colleague or associate of a mental health professional was “significantly different from the more familiar practice of a news reporter” who shades or withholds information about his or her motives, Chief Justice Ronald M. George wrote for the court.
Such a pretense “by either a reporter or an academic investigator could undermine legitimate professional relationships,” George wrote.
Although the court rejected most of the claims against Loftus, she said she feared that others might be hurt by the one that was upheld.
“I worry for everybody that the problem of source remorse is going to come back to haunt thousands of scientists, journalists and other scholars who are looking into a matter of great public interest,” Loftus said.
Seth D. Berlin, who represented the news media, including The Times, said the finding of liability has left journalists and other investigators vulnerable when interviewing third parties about another person.
“The problem is you don’t know with any predictive certainty” which sorts of misrepresentations would create liability, said Berlin, who praised the dismissal of the other claims against Loftus.
He observed that it was not uncommon for an embarrassed news source to later claim he or she was misled or quoted out of context.
Loftus was sued after writing a critique of a report about a woman who has since identified herself as Nicole Taus. One of the authors of the report, Dr. David Corwin, reported that at age 17 Taus had no memory of having been molested by her mother. Then, suddenly, during a meeting with him, she recalled the abuse, he said. Corwin identified Taus only as Jane Doe.
Loftus and a colleague investigated the case and later published a report that questioned whether Taus had ever been molested, noting that the allegations had come during a nasty custody fight.
Although Loftus did not identify Taus or her foster mother by name, the court majority said that “personal information about a person that happens to be known by the person’s relatives or close friends is not information that has entered the public domain.”
George said the court recognized that journalists could be sued based on meritless allegations and that such a prospect demonstrated “the danger and inadvisability of adopting a broad rule” of liability.
“At the same time, however, we believe it is important to recognize that there are at least some types of misrepresentations that are of such an especially egregious and offensive nature -- and are quite distinguishable from the types of ruses that ordinarily might be employed in gathering news -- that they properly may be considered ‘beyond the pale,’ ” wrote George, joined by Justices Joyce L. Kennard, Kathryn Mickle Werdegar, Ming W. Chin and Carol A. Corrigan.
In such cases, an investigator should be held liable “even when the misrepresentation is made to friends or relatives of the subject of an inquiry who are under no legal obligation not to reveal private information about the subject of the inquiry,” George wrote.
In their dissent, Justices Carlos R. Moreno and Marvin R. Baxter said Taus had no reasonable expectation that her former foster mother would keep information about her private, particularly since Taus was at the center of a debate over repressed memory.
“The majority’s desire to protect society from the kind of misrepresentations alleged in the present case is understandable,” Moreno wrote. But permitting such lawsuits “will likely chill vigorous journalistic investigation because of the inherently problematic nature of the relationship between journalists and their news sources.”
The court threw out Taus’ other claims against Loftus: public disclosure of private facts, defamation and intrusion into confidential juvenile court records.
Thomas R. Burke, a lawyer for Loftus, said he was gratified for the favorable parts of the ruling, as well as the decision that Taus must pay Loftus’ legal bills for having to contest the charges the court threw out.
He said the defense’s legal costs have been “enormous” and that Loftus can prove in court that she did not misrepresent herself.
A lawyer for Taus did not return a telephone call for comment.
Joyanna Silberg, a spokeswoman for a group that sided with Taus, said she was pleased Taus was “allowed her day in court.”
“We believe this a victory for anyone who values their right to privacy, particularly victims of abuse and trauma,” said Silberg, executive vice president of the Leadership Council on Child Abuse & Interpersonal Violence, a nonprofit that believes a traumatic event can be forgotten and later remembered.