Reporter's hidden camera in open office space can violate privacy

CALIFORNIA–Even an employee who knows a conversation in an open office space will be overheard by coworkers can pursue an invasion of privacy claim if that conversation is recorded by a hidden camera, the state Supreme Court in San Francisco held in late June.

California’s highest court held that an employee whose conversations with coworkers were secretly recorded by a reporter was not barred from asserting an invasion of privacy claim, despite the fact that the conversations were not considered confidential by the participants and were not kept private from coworkers.

ABC reporter Stacy Lescht went undercover in 1993 to investigate fraud in the “telepsychic” industry. After being hired as a telepsychic, Lescht recorded conversations between herself, coworker Mark Sanders, and other employees in a large work room — divided only by five-foot high partitions — where the telepsychics took calls.

The state Supreme Court reversed a Los Angeles intermediate appellate court decision, which had held that the absence of an objectively reasonable expectation of privacy regarding the conversations precluded recovery for any invasion of privacy claim against the reporter or the television network.

In the opinion, Supreme Court Justice Kathryn Mickle Werdegar rejected the notion of privacy as an “all-or-nothing” concept and described an “expectation of limited privacy.”

“There are degrees and nuances to societal recognition of our expectations of privacy: the fact the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law,” she wrote.

The Supreme Court relied heavily on its June 1998 decision in Shulman v. Group W Productions. In Shulman, the court concluded that two people injured in a car accident could sue for invasion of privacy based on the fact that a cameraman recorded emergency care given in a rescue helicopter. The accident victims, the court held, could claim a reasonable expectation of privacy in the rescue helicopter, even if they did not expect their conversations in the helicopter would not be overheard and could not claim a right to privacy at the accident scene prior to being moved to the helicopter.

The court did not determine whether the recording of the conversations in this case met the elements of intrusion set out in Shulman — whether the conversation was a private matter and whether the intrusion would be highly offensive to a reasonable person — and remanded the case to the intermediate appellate court for further consideration.

The court noted that its ruling does not imply “that investigative journalists necessarily commit a tort by secretly recording events and conversations in offices, stores, or other workplaces.” However, the Supreme Court’s ruling, unlike the intermediate appellate court’s decision, allows the”identity of the claimed intruder and the means of intrusion” to determine whether the subjective expectation of privacy was reasonable.

A six-second excerpt from one of the conversations between Sanders and his coworkers was aired in a “Prime Time Live” broadcast. Sanders then sued Lescht and ABC, asserting various tort claims. Before trial, the Superior Court of Los Angeles County found the broadcast to be newsworthy and truthful, dismissing all causes of action except the claim of invasion of privacy.

The Reporters Committee for Freedom of the Press was among a group of media organizations that filed a friend-of-the-court brief with the state Supreme Court in support of Lescht and ABC. The media organizations argued that Sanders could not reasonably have expected his conversations with coworkers in an open room to be private and that the presence of a hidden camera could not alter his level of expected privacy.

(Sanders v. American Broadcasting Cos., Inc.; Media Counsel: Andrew M. White, Los Angeles)