Desnick v. American Broadcasting Companies, Inc.

Brief Fact Summary.

Despite promising no ambush interviews or undercover surveillance, TV program Entine sent fake patients to Desnick centers with concealed cameras.

Synopsis of Rule of Law.

No trespass or invasion of privacy claim arise when a defendant procures consent to enter an owner’s property through fraud if the harm to the plaintiff is not one that the tort’s cause of action intended to protect.

Facts.

Entine told Desnick’s clinic owner that it wanted to do a segment on cataract practice and promised no ambush interviews or undercover surveillance. Desnick permitted an ABC crew to film a “live” operation and to interview Desnick personnel at its Chicago office. Entine sent fake patients with concealed cameras to other Desnick centers without Desnick’s consent.

The reporter introduced the show’s segment as an undercover investigation and proceeded to bring on many guests who said defamatory statements about Desnick, alleging malpractice and fraud. The segment also included the reporter’s ambush interview of Desnick at an airport.

Desnick sued for defamation, invasion of privacy, and trespass.

Issue.

1. Did Entine commit a trespass by sending fake patients into Desnick centers?
2. Did Entine commit an invasion of privacy by sending fake patients into Desnick centers?

Held.

Affirmed in part, reversed in part, and remanded.

1. No, Entine did not commit a trespass by sending fake patients into Desnick centers.
2. No, Entine did not commit an invasion of privacy by sending fake patients into Desnick centers.

Discussion.

1. Did Entine commit a trespass by sending fake patients to Desnick centers?

Trespass occurs when one enters another’s land without consent. Journalists do not have a privilege to trespass. There is no defense of consent when the consent is based on a misrepresentation or misleading omission. Here, Desnick would not have agreed to treat the patients if it had known the patients were fake and only there to gather intel for a television expose via concealed cameras. There are circumstances when an owner would revoke consent to allow a person on her property if the person’s true intentions were known, such as when Michelin critics dine at restaurants or fake friends get invited to dinner parties. But the law allows for such situations even though the consent was procured by means of fraud, even outside of trespass to cases of battery and others.

To distinguish which situations are unlawful and which are lawful, the question to ask is what interest the tort in question aims to protect. For example, a Michelin critic can dine at a restaurant under consent procured by fraud because at the end of the day the restaurant wants to have customers and the Michelin critic is a customer. In contrast, intercourse under the pretense of rendering medical or psychiatric treatment is a battery because the individual victimized in that circumstance wants medical treatment and not to be assaulted.

Trespass is not the appropriate cause of action for the case at hand because the fake patients entered offices open to anyone and videotaped physicians engaged in their professional communications with strangers. No office activities were disrupted, nor were any embarrassingly intimate details of anybody’s life publicized.

2. Did Entine commit an invasion of privacy by sending fake patients into Desnick centers?

The closest rights of privacy relevant to this case are the concealment of intimate personal facts and the prevention of intrusion into legitimately private activities. However, no intimate personal facts concerning Desnick were revealed—only conversations with the fake patients themselves. Because the owner is not a plaintiff to this suit, the ambush interview of the owner at the airport is not included.

Federal and state wiretapping statutes allow one party to record a conversation unless his purpose is to commit a crime or tort. Here, Entine did not order the camera into Desnick centers to commit a crime or tort because there is no evidence that Entine sent the reporters for the purpose of defamation at the time of the undercover investigation (though the ultimate program that was created may have constituted an actionable tort of defamation).