Hidden Cameras - Protocol for Use
By Jerald N. Fritz*
Reprinted from Communications Lawyer, Forum on Communications Law American Bar Association Volume 16, Number 4, Winter 1999, pp. 22-23
Reporter: "Can I use them or can't I? Just tell me yes or no. You need to bless this so we can shoot the story…so is it ok or not?"
Lawyer: "Unfortunately, --- and I know the answer is very unsatisfying --- but, it depends."
Reporter: "Coming from you, why does this not surprise me?"
Typical conversation? Lawyers have it with news reporters with depressing frequency. And with Hidden-Camera stories, the black and white answers requested are never apparent, so frustrations can run high. Not as high, however, as potential legal bills, so the newsroom/lawyer debates will continue.
There has been significant and increased interest recently regarding undercover reporting, eavesdropping and the use of hidden-cameras in newsgathering. This is a function of cheaper available technology and the increase in "consumer" investigatory pieces on local news and network and syndicated magazine shows. Although the technology may be pervasive, guidelines for legal and ethical considerations are still evolving, often contradictory, vague or filled with hidden, complex legal traps.
To help negotiate the hidden-camera maze, this article offers a list of questions that lawyers and reporters may want to consider in pursuing undercover stories. At best, this analysis is just a starting point for discussion to assess the appropriateness of surreptitious recording. At worst, the protocol can give a false sense of security that use of the devices has been "blessed" by counsel. Because each story is unique, the protocol is meant to trigger the right questions. In virtually all cases, the right answers involve balancing competing considerations. In all cases, however, fully vetting the use with counsel is something that should be considered by all media.
Protocol Does the state in which you intend to tape require both parties to consent to any taping? In a one-party consent state, is the reporter a party, or is he eavesdropping without consent? What is the role of video in the story? Is it essential? Does it bring real value? Is it necessary to use a hidden-camera in this story? Why? Does the story involve insignificant, private matters (even if emotional), or are there matters of vital public concern, prevention of profound harm, or system failure? Is the rationale for the story simply to win a prize or beat the competition? Do your motives involve getting the story quickly and cheaply, rationalizing that others have done it or that the story subjects are themselves unethical? Are hidden-cameras to be used primarily to create drama? Can a visible camera be used with the same impact? Have you used all traditional means to investigate the story, including interviews, and reviewing public records, databases and documents? Is the story clearly focused, or is the camera aiding what is essentially a fishing expedition? Is the hidden-camera video provided to the station by a third party or shot by the station itself? What do you know about how third party video was obtained? Will the reporter use pretext or deception (lie) to gain access for reporting? Will the reporter impersonate a customer, co-worker, client, patient? Will the harm prevented by such deception outweigh the harm caused by the deception? What happens if the reporter's cover is blown? Can a reporter lie to maintain his cover? What happens if the reporter sees a crime being committed? Do you intend to use employee "whistleblowers" to carry a camera? Will they be employed by the station as well? Do you fully know the whistleblower's agenda? Where will the camera be used --- in a public place? quasi-public? private office? private home? Who else will be in the room? Will anyone else hear the conversation? Will subjects have an expectation of privacy? Will the reporter enter private property without consent of owners to tape? Will senior, experienced journalists closely monitor the investigation? Will raw tapes be screened daily? Will junior reporters be sent in the field without experienced staff close by? Will all field reporters be clearly advised on guidelines for equipment use and procedures in case of discovery? Will equipment be technically tested each time prior to use? Do you intend to publicly disclose private facts? Is the resulting story fair, factually accurate, and authentic in context? Will editing be allowed to alter contexts? Are individual subjects necessary to the story? Are story subjects minor figures? Can they be edited out? Will they engender sympathy? Will hidden-camera stories be aired prior to viewing and/or approval by the news director and/or counsel? Will ALL promotion pieces be reviewed prior to broadcast? What will a judge/jury think about what you did and how you did it? Have the news director and counsel approved use of the camera? *Vice President - Legal and Strategic Affairs and General Counsel, Allbritton Communications Company, Washington, DC. Allbritton and its affiliates operate eight network-affiliated television stations, a 24-hour local cable news channel and several newspapers around the country.
Back
Print Story
Email Story
RSS Feed
