Flight attendant loses invasion of privacy appeal against ABC

CALIFORNIA–A federal appeals court in early August denied an airline flight attendant’s appeal of the dismissal of her invasion of privacy and eavesdropping claims against ABC for surreptitiously taping and airing parts of an interview on its program “Day One.”

A panel of the Court of Appeals sitting in Pasadena, Calif. (9th Cir.), affirmed a district court’s grant of summary judgment in favor of ABC.

Beverly Deteresa, who worked on the American Airlines flight that O.J. Simpson took to Chicago on the night of his ex-wife’s murder, claimed she was videotaped and audiotaped without her knowledge a week after the flight by a camera crew on the street while she spoke to an ABC producer at her doorstep.

Judge Diarmuid O’Scannlain, who wrote the opinion for the divided appellate panel, held that the state eavesdropping statute did not apply because Deteresa had no reasonable expectation that a conversation with a journalist would be kept confidential. The producer did not promise confidentiality, Deteresa did not request it, and she should have expected that her comments on a controversial topic would be reported by the producer, the court held. The state statute bars the surreptitious recording of any “confidential communication” without the consent of all parties.

The taping constituted only “an insubstantial impact on privacy interests,” according to O’Scannlain. Deteresa failed to demonstrate a sufficiently offensive invasion of her privacy to justify her intrusion claim, the court held. ABC videotaped Deteresa in public view from a public place, aired only a five-second segment of the videotape and none of the audiotape, and did not disclose her name or address, the court noted.

“Deteresa spoke voluntarily and freely with an individual she knew was a reporter. He did not enter her home. There was no evidence that any intimate details of anyone’s life were recorded. No portion of what was recorded was ever broadcast,” O’Scannlain pointed out.

The court also dismissed Deteresa’s claim under the federal eavesdropping law, which requires the consent of only one participant in a conversation.

ABC producer Anthony Radziwill had appeared on Deteresa’s doorstep to ask her if she should be willing to appear on a television show to discuss the flight, but did not inform her that their conversation was being audio- and videotaped. Deteresa initially declined an on-camera appearance but disclosed some details about the flight that contradicted previous press reports. When Radziwill called Deteresa the next day, she again refused to appear on camera. After Radziwill revealed that he had taped Deteresa, her husband told Radziwill that she did not want ABC to broadcast the videotape.

The dissenting judge, District Judge Robert Whaley, who was sitting on the appellate panel by designation, said that in creating the eavesdropping statute, the California legislature may have intended to give the speaker, rather than the listener, control over the confidentiality of a conversation. He said the majority view amounted to a rule that “individuals who talk to reporters presumptively consent to the secret recording of the conversation.” (Deteresa v. ABC, Inc.; Media Counsel: Jean Zoeller, Los Angeles)