Legal Concerns (part 1)
Legal concerns have become a major issue in independant film/video, especially if you plan to broadcast your creation.
Although some legal restraints, such as shield laws, laws against defamation, invasion of privacy, etc., are in the public's best interest, others are not, such as when a large corporation threatens a costly lawsuit if a true story about their wrongdoing is broadcast.
Before we get too far into this article, two important things must be emphasized.
First, what follows is drawn from U.S. law.
Second, in the United States the best that any writer can do in an area that regularly changes from state to state and time to time (not to mention from jury to jury) is to suggest some general guidelines that should not be considered legal rules. Even legal advice that has been presumed true for decades can be suddenly reversed by a court decision.
Since ignorance of the law is not a valid defense in a court of law, we simply want to alert you to some danger areas in film/video production. The bibliography at the bottom of this article will suggest additional sources of information.
In this article we'll touch on three areas:
invasion of privacy
access restrictions and rights
libel and slander
In Part II of this topic we'll cover three more issues:
staging
copyright
talent and location releases
Privacy—Public and Private Individuals
Although the U.S. Constitution does not talk about a right of privacy or invasion of privacy, throughout the years courts have held that citizens need protection from the unwarranted or unjustified publication of images or information of a private nature.
When it comes to invasion of privacy, the law makes a distinction between private and public individuals.
Once individuals enter the "public spotlight" (either intentionally or through accidental circumstances), they are afforded much less legal protection. We only need look at the tabloids to see this.
At first it might seem that everyone should be afforded full protection from the public disclosure of private information. But, the problem arises when that "private" information relates to illegal or immoral conduct. For example,
If a man is convicted of child molesting, can he claim it's private information? If so, does he have a right to keep the press from disclosing that information (and the people in the neighborhood where he lives from knowing about it)?
If a politician is found guilty of stealing money from the public treasury, do we have a right to know it (especially before the next election)?
If a respected evangelist who regularly preaches against illicit sex has a string of sexual affairs, can he claim that this information is private and should not be publicly disclosed?
In cases such as these many people feel that not only does the public have a right to know these things, but also that the press has a responsibility to bring such things to the public's attention.
Our system of government and our way of life depend on an informed public. The degree to which the public is kept in the dark is the degree to which it's vulnerable to the duplicity of self-serving individuals.
Recognizing the crucial role that a free press has in maintaining a democratic system, U.S. courts have generally been quick to protect the news media's rights to gather and disseminate information—as long as the information is true.
But, what if that information is true but voyeuristic in nature and intended primarily to
generate ratings or the increased sales of a publication?
It has come as a surprise to many journalists that disclosing true and verifiable facts about someone can be an invasion of privacy.
To be so, the information must:
consist of information of a private nature that is deemed offensive to a reasonable person
consist of information that's not deemed newsworthy or of legitimate concern to the public
be published, broadcast, or in some way disseminated to an audience
Disclosing that a private individual has AIDS, is a lesbian or a homosexual, may fall into this category, if such facts are not deemed relevant to any present newsworthy story.
If, however, the individual consents to disclosing the information, or if the information could easily be obtained from public records, courts have not seen the disclosure of this information as being an invasion of privacy.
Intrusion
One type of invasion of privacy is intrusion, also referred to as intrusion on seclusion, or intrusion on solitude.
For private (as opposed to public) individuals overhearing and publicizing private conversations, or broadcasting images of on private property typically constitutes an invasion of privacy.
A general guideline is that if you are on public property when you obtain the information or images and you do not use a long telephoto lens or a highly directional microphone, an invasion of privacy case would be hard to prove.
This is because an average citizen could have easily witnessed the same thing. Things change, however, when you trespass onto private property or use some type of sophisticated surveillance equipment.
Access
One of the grayest areas of the law and one that is most often encountered by news people is access to locations.
If the location is on public property there is generally never a problem, unless you're seen as interfering with police or public safety officials. Thus, photographing a public demonstration, disaster, or even a crime scene under these conditions is okay.
Once you move to private property you need permission, either from the owner of the property or his agent (who might be renting the property), or from police.
Court decisions have generally held that, in the final analysis, the press (with or without a press pass) has no legal privileges beyond those granted to the general public. At the same time, public officials often grant recognized members of the press special privileges.
News people often decide to go onto private property in the pursuit of information or pictures—until they are specifically asked to leave. Interestingly, courts have held that videographers will generally be allowed to broadcast any footage taken before they were asked to leave.
Sometimes the story is worth the risk of being arrested, and under certain circumstances courts have held that the ends (getting a story that would be impossible otherwise) justified the means (trespassing on private property).
It had always been assumed that if a law enforcement official that has taken charge of a crime scene grants you permission to go onto private property, a trespassing case won't hold up. A recent court case is the one exception here. In some rather unusual circumstances, a judge upheld a trespassing case against a network ENG crew—even after a FBI agent had specifically invited them to accompany them into an apartment during a drug bust.
Guidelines for Intrusion
To conclude, let's look at some summary points (questions) that courts have deemed relevant in intrusion cases.
Was what you heard or photographed also accessible to the average person standing on public property?
Were you given permission to enter private property?
Did you break the law when you could have gotten the information in a legal way?
Was the information you got in the disputed circumstances newsworthy and of legitimate concern to the public?
Was "prying" involved? (Prying goes beyond basic curiosity and moves into the area of offensive and inappropriate snooping into a private individual's personal life.)
Is what you disclosed something that is generally agreed to be of a private nature?
Would your alleged intrusion be deemed objectionable to a reasonable person?
Commercial Appropriation
Commercial appropriation involves an unauthorized use of an individual's or organization's prominence in order to benefit someone else.
The courts have recognized that well-known people acquire an identity that is of value and these people deserve to be protected from someone "cashing in" on that value without their consent.
Let's say you are doing a commercial for a restaurant or a health spa and you just happen to catch some well-known person in attendance. Obviously, the commercial would be much more influential if this person appeared to frequent this establishment. However, if you run the commercial without their permission, they could sue you. Celebrities often have sued and won damages in such cases.
If you were televising a public event and wanted to show general shots of the audience in attendance, there would be no problem, even if one of the members of the audience was well known. Individuals in this case are considered "background."
But, if one of the people in the audience was a well-known person and you appeared to go out of your way to bring this fact to the attention of the audience, you could be guilty of trying to "cash in on" the person's prominence. At the same time, stations and networks know that few prominent people sue in these circumstances; and, in fact, many appreciate the publicity.
If the public figure is actively taking part in an event being covered, he or she can be considered a part of the event. In such cases the camera shots may dwell on the person
as much as they wish.
Shield Laws
About half the states have shield laws to keep courts or judges from forcing news people into having to reveal confidential sources of information.
A well-known investigative reporter who is responsible for breaking many stories about corruption and wrongdoing in high places noted that without the assurance that news people can protect the confidentiality of their sources, few people would be willing to risk their own welfare and "name names" in revealing inside information about crime and corruption.
In states where there are no shield laws some reporters have chosen to serve time in jail on contempt of court charges rather than break a promise to keep a source's name confidential.
At the same time, no responsible news medium would run a story based on a single confidential source. The original source should only serve to launch an investigation. Reputable news organizations always verify details of important stories through independent sources. This not only protects the credibility of the news organization, but can save a costly defamation lawsuit.
Defamation
Defamation is defined as the communication to a third party of false and injurious ideas which tend to lower the community's estimation of the person, expose the person to contempt or ridicule, or injure them in their personal, professional, or financial dealings.
Libel is defamation by written or printed word and is generally considered more serious than slander, which is defamation by spoken words or gestures. Some recent court decisions, however, have removed much of the distinction between the two.
Local stations and networks have been sued for millions—even billions of dollars.
In 1990, the median jury award against a news organization was $550,000. Only six years later this figure had risen to $2.3 million.
Since even the cost of defending a libel or slander suit is often several hundred-thousand dollars, many stations and production agencies have insurance against libel and slander.
The injured person in defamation cases must be apparent to the audience, although not necessarily specifically named. The false statement must have been presented (or interpreted by an average reader/viewer) as fact and not clearly intended as satire or fair comment.
Although negligence on the part of the journalist must generally be shown in these cases, so-called "honest mistakes" can also precipitate a legal action if it can be demonstrated that a false statement injured someone's good name, professional standing, or resulted in financial loss.
Negligence can range all the way from not taking the time to check facts or proofread copy before it was aired to "a careless disregard for the truth." Actual malice, which ranges from a careless disregard for the truth to an intent to cause injury, is the most serious form of defamation and typically results in much greater damages.
The injured party in a defamation suit doesn't have to be a person; it can be a company or institution. If you state that "all X-brand cars are lemons," or that a particular company produces food that will make you sick or kill you, you can expect to get a very official call from their lawyer.
Instead of saying that all X-brand are lemons, you would be on much safer ground by saying something that you could prove, such as "68% of all X-brand cars are in for repair within 30 days of their purchase."
In the case of the food you could cite hospital records that indicate that 124 people in Peoria, Illinois were admitted to area hospitals after eating Miss Mollie Maple's Muffins. But in both cases you want to make very certain that you can prove the accuracy of the statements.
Confronting Lawsuits
It should be obvious that producers must carefully check any questionable material before broadcast or distribution. At one TV station the executive producer, the news director and the station's attorneys view questionable segments.
If you are served a subpoena for alleged defamation, don't try to start explaining your way out of it. You can get yourself in deeper trouble. Also, never agree to hand over a tape or transcript of the segment in question unless ordered to by the court. Immediately turn the matter over to an attorney who specializes in this area.
And never ever make a comment regarding the truth of the challenged statement to anyone except your lawyer. If a reporter says, "I'm really sorry, I was in a hurry and I just didn't check my facts," this could constitute an admission of guilt—even a "reckless disregard for the truth," which could constitute malice. Cases have been lost after such admissions.
Corrective Statements
If a definite error in fact is discovered after it has been telecast, you may be able to reduce damages by immediately airing a full corrective statement with an apology. Although this may not eliminate a lawsuit, it may serve to reduce the damages awarded.
Excerpted from: http://www.cybercollege.hm/tvp066.htm
This article was acquired on the "fair use" basis. We encourage you to visit the source website for more information on this subject.
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