Citation. 44 F.3d 1345, 1995 U.S. App. 23 Media L. Rep. 1161.
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Brief Fact Summary.
An investigative news program used undercover cameras to tape a doctor consulting with wired patients.
Synopsis of Rule of Law.
Trespass is the interference with the ownership or possession of land and does not include a misrepresentation to enter the land.
A producer for PrimeTime Live, a television program on ABC (Defendant) called Dr. Desnick, the owner of Desnick Eye Center (Plaintiff) and asked permission to shoot footage for an upcoming program. Unknown to Plaintiff, Defendant dispatched people with hidden camera to Defendant to pose as patients and request eye exams. Defendant took the recordings of the patient exams and used them as part of the program, which aired nationally. Defendant claims a trespass occurred when the undercover patients entered his office.
When a landowner permits entry into his property to another based on the other’s misrepresentation or a misleading omission, will that constitute a trespass?
To enter the land of another without consent is a trespass. There is no journalists’ privilege to trespass. But, consent is sometimes deemed to exist, even though it was gotten through fraud.
Consent to entry is often given legal effect even though the entrant has intentions that, if known to the owner of the property, would cause him to revoke his consent. The law of trespass was made in order to protect a person’s property. Plaintiff’s property was not affected by the patients.
The undercover patients entered the medical office, which was open to anyone wanting services. The cameras were used to record professional communications with the patients carrying the cameras. The activities of the office were not interrupted and no embarrassing intimate details of anyone’s life were broadcast.
There was no eavesdropping because the patients were recording their own conversations. Doctor-patient privilege was not violated. Though they gained entry through a misleading omission, the entry was not invasive. It did not interfere with the ownership or possession of land.
Even though a person may enter another’s land with a different intention than what the owner believes, a trespass will not occur until there has been an interference with the ownership or possession of land. Undercover videos of professional communications do not interfere with ownership or possession of land.