Fighting Back   

Companies unhappy with coverage are attacking the way information isobtained rather than the merits of a story. CBS' decision to scuttle a "60Minutes" piece on tobacco suggest the approach is working.

LOWELL BERGMAN HAS WORKED as a producer for CBS' "60 Minutes" for 13 years, doing hard-hitting investigative pieces that have helped make theprogram the nation's top-rated television newsmagazine. Bergman's forte ispersuading reluctant sources to talk.

While working on a story about the tobacco industry, Bergman found aformer executive with Brown & Williamson, the nation's third largesttobacco company, who was willing to tell on air some of the secrets of hisformer employer. Among other things, he alleged that Brown & Williamsonknowingly used a cancer-causing flavoring in its pipe tobacco, accordingto the New York Daily News.

While "60 Minutes" had taped an interview with the former executive,Jeffrey S. Wigand, Bergman was nowhere near ready to put him on the air.Bergman had been working with Wigand for seven months, but the veteranproducer says he was still in the process of trying to corroborateWigand's allegations. Bergman planned to spend "at least another month,maybe two more" checking out Wigand's allegations, looking for otherwitnesses or documents to make sure his story held up.

But while he was still reporting, CBS General Counsel Ellen Oran Kadenintervened. In early November, Kaden, backed by CBS management, ordered"60 Minutes" to drop the story--before it was even finished.

Typically, two CBS lawyers are assigned exclusively to "60 Minutes" to vetstories after they're done. Never before, says Bergman, had the generalcounsel personally intervened on a "60 Minutes" piece.

But this time Kaden was concerned. She warned that CBS could be liable forsomething called "tortious interference" with a confidentiality agreement,and that the network faced the prospect of a multimillion-dollar lawsuitif it put the Wigand interview on the air.

Wigand, once a $300,000-a-year executive, had signed a confidentialityagreement after he was fired in 1993.

B Y GETTING WIGAND TO TALK , CBS lawyers feared, "60 Minutes" could beaccused of inducing Wigand to break his agreement--and that might make thenetwork vulnerable to a lawsuit. (B&W eventually did sue Wigand for fraud,theft and breach of contract over the interview.)

The novel legal claim had rarely been raised before in connection with thenews gathering process, according to Henry R. Kaufman, general counsel forthe Libel Defense Resource Center. Kaufman says that in the past when sucha claim has been made after a piece was published, it has never prevailed.

CBS' capitulation in the face of a possible tortious interference claimprovoked sharp debate among media lawyers and analysts. Some said thenetwork had acted prudently by scrapping the report. Others argued the "60Minutes" cave-in was emblematic of the way news outlets are running scaredin their dealings with the aggressive, legally savvy tobacco industry.

But regardless of the merits of the network's retreat, it seems clear thatthe episode reflects a trend, one triggered in part by the media's ownmissteps. Corporate and individual targets of news stories are fightingback both in courtrooms and in the court of public opinion by trying toput news organizations on trial, and not just for libel.

Plaintiffs are using lawsuits or threats of lawsuits to question whetherjournalists obtained their information properly, sometimes avoiding theissue of whether the stories are true.