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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   September 1999  issue

Cracking Down on Covert Media Taping   

Californiaís highest court rules ABC was wrong to secretly record a telepsychicís conversation.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

"I wonder that a soothsayer doesn't laugh whenever he sees another soothsayer."

Mark Sanders' powers of prognostication must have been a little defective the day he had a couple of heart-to-heart talks with his "co-worker," Stacy Lescht.

Lescht, a reporter for ABC's "PrimeTime Live," took a job with the Psychic Marketing Group in Los Angeles as part of her show's undercover investigation of the telepsychic industry. She was assigned to one of about 100 cubicle desks in a room where the psychics gave readings to customers who called in on PMG's "900" telephone line.

Wearing a video camera in her hat and a microphone in her bra, Lescht taped her conversations with other psychics during work lulls. Two of the recordings captured separate chats with Sanders, a PMG employee. One took place with Sanders standing just outside Lescht's cubicle. The second, longer discussion, during which Sanders shared "his personal aspirations and beliefs," was conducted inside Sanders' work space, court records state. Both conversations were interrupted at various points by other co-workers or by customer calls.

"PrimeTime Live" in February 1993 broadcast a short excerpt from the second conversation as part of its story. In the six-second excerpt, Sanders talks about a former stand-up comedy job which his lawyer, Neville L. Johnson, says was an attempt to demonstrate "he wasn't really into his [telepsychic] job. But he was."

Sanders sued, claiming that Lescht had violated a California law that prohibits recording "confidential communications" without consent of all parties. He also said Lescht had invaded his privacy. A Los Angeles County Superior Court jury awarded him nearly $1.2 million in damages and lawyer's fees in May 1995. ABC appealed.

Under the California statute, a communication is not "confidential" if it is recorded in circumstances when the parties would reasonably expect that the conversation would be overheard. ABC successfully argued before a mid-level appeals court that Sanders could not have expected his talks with Lescht to be confidential because other workers could easily listen in on them in the crowded work space.

But the California Supreme Court disagreed on June 24. Privacy, Associate Justice Kathryn M. Werdegar wrote for the court, is not an all-or-nothing proposition. Whether an individual's expectation of privacy is reasonable depends on the circumstances. Simply because seclusion is not complete in a particular setting doesn't mean there is no privacy at all.

In this case, the cubicles were enclosed on three sides, and the workroom was off-limits to nonemployees unless they were given permission to enter. Sanders may not have had a legitimate expectation of complete or absolute privacy from his co-workers, but that didn't mean he could be forced to be seen and heard by everyone else.

The court dredged up a nearly 30-year-old case, Dietemann vs. Time Inc., which held that a quack doctor who met with patients in his home office could sue journalists who secretly photographed and recorded his examination of one of them. Even though the doctor had invited the reporters into his home, he had consented only to being heard and observed by those visitors, not to being secretly recorded for future transmission to the public at large.

"Privacy for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion," Werdegar wrote. A worker does not lose all reasonable expectation of privacy against covert taping, especially by a member of the news media, simply because co-workers might also witness or hear the conversation, she added.

In response to ABC's warnings that recognizing privacy rights in this situation would chill the news media's investigation of abusive business activities, the court declined to adopt a bright-line rule that all secret tapings in open workplaces necessarily violate the workers' rights. Media defendants remain free to argue in their defense that an intrusion into someone's work space might be justified by "the legitimate motive of gathering news."

The Sanders case illustrates the dilemma judges experience when they attempt to balance the First Amendment rights of the media to report on matters arising inside businesses against the rights of the workers to privacy. Journalists often say that it is self-evident that they need to go undercover to expose abusive business activities, and that secret tape recordings are necessary to prove the truth of what they observe. But you'd need a crystal ball to predict whether such arguments will succeed.