Hospital reality show falls within ‘news’ definition

From the Summer 2003 issue of The News Media & The Law, page 49.

By Wendy Tannenbaum

Reversing a decision by a New Jersey trial court judge, the Superior Court of New Jersey, Appellate Division, took an expansive view of the state’s shield law in a recent ruling, holding that a reality television series on emergency room care falls within the definition of “news” under the law.

The decision, rendered July 15 by a three-judge panel, allows the New York Times Company, whose subsidiary NYT Television produces the show, to withhold videotape from discovery in a privacy lawsuit brought by an emergency room patient.

News “is not limited to reports of significant public events,” the court wrote. “Local television news programs are sometimes dominated by pictures of fires, accident scenes and interviews of crime victims and their families. Even network national news programs frequently broadcast ‘human interest’ stories that may be considered more entertaining than informative.”

The court said that in view of “the variety of topics covered by news shows and shadowy boundary between ‘news’ and ‘entertainment,'” a show that presents “primarily human interest stories” but has “educational and public policy aspects” may be considered a form of “news media” under the law.

The hospital show, “Trauma: Life in the ER,” airs on Discovery’s Learning Channel. It follows the activities of individual emergency room patients from admission to the hospital through treatment and discharge.

The plaintiff in the case, Joseph Kinsella, was filmed as a patient in the emergency room of Jersey Shore Medical Center in July 2001. He had fallen from the roof of a building he was spraying with insecticide. Footage of Kinsella never aired on the show.

Kinsella’s case is one of nine lawsuits brought by emergency room patients who were filmed for the show. The latest suit, a class action, was filed in late June, according to New York Times Company attorney David E. McCraw. Class action cases alleging invasion of privacy are rare.

Kinsella, like the plaintiffs in the other suits, signed a consent form before he was filmed. The patients claim they were not told what they were signing when they agreed to allow the cameras to follow them.

The New York Times Company has taken the position that the consent forms clearly identified the purpose of the filming and were freely signed, according to McCraw. The company says that as journalists, their film crews did not even need consent to tape newsworthy activity but provided the forms in an effort to avoid lawsuits.

July’s shield-law decision was in line with the position of the New Jersey Press Association and The Reporters Committee for Freedom of the Press, which filed a joint friend-of-the-court brief in the case. In their brief, the groups objected to the plaintiff’s characterization of the “Trauma” show as “shock television.”

“Plaintiff’s argument, reduced to its essence, suggests a litigant can overcome the newspersons privilege because he or she does not like the content of the news report or feels it does not meet the highest standards of news gathering,” the groups wrote. That argument is not supported by the statute, they said.

“The Appellate Division recognized that there were new and unconventional forms of journalism that remain journalism even though they’re topically different from standard news formats,” McCraw said. “This is completely in keeping with where the New Jersey Supreme Court has said the courts should go on the shield law: broad definition of news, broad definition of news media, and a shield law that applies to unpublished and unaired as well as confidential information.”

New Jersey’s shield law is one of the strongest in the country. In a 1978 opinion, the state supreme court noted that “the legislative intent in adopting this statute . . . [seeks] to protect the confidential sources of the press as well as the information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey.”

The law permits a litigant to compel disclosure of materials from the news media only where the information sought is “relevant, material and necessary” to the case and cannot be obtained from any less intrusive source.

The Appellate Division’s ruling also shot down an attempt by Kinsella to override the shield law with an assertion of constitutional injury. Kinsella argued that his claim for invasion of privacy was constitutionally based and, therefore, “trumped” the shield-law protections.

The court said, “there is no reason to constitutionalize the common law cause of action for invasion of privacy.”

The decision means Kinsella’s suit will proceed without the video outtakes requested by Kinsella. Discovery in the case will proceed through the summer, according to McCraw.

If the case goes to trial, The New York Times Company will have to provide Kinsella with any videotape it intends to introduce as evidence at trial during the discovery phase of the litigation. (Kinsella v. Welch) u