ESTABLISHING

CONSTITUTIONAL

MALICE FOR

DEFAMATION AND

PRIVACY/FALSE LIGHT

CLAIMS WHEN HIDDEN

CAMERAS AND

DECEPTION ARE USED BY

THE NEWSGATHERER

By David A. Elder, Neville L. Johnson

and Brian A. Rishwain (2002)

Definition of Terms

Common-law malice is based on the traditional concept

of spite or ill will.

Constitutional malice or actual malice refers to

publication of false material with knowledge of its falsity,

or a high degree of awareness of the falsity.

Ello v. Singh, 531 F. Supp. 2d 552

(U.S. District Court, 2007)

Definition of Terms

Then, in 1964, the U.S. Supreme Court decided New York Times Co. v. Sullivan and transformed “actual malice” from a common law matter to a constitutional one.

In New York Times, the Court held that, pursuant to the First Amendment, a public official cannot recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice.’

The Court did not define actual malice in terms of ill will. Instead, a publisher makes a statement with “actual malice” if the publisher acts “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.

Definition of Terms

First Amendment

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the government for a redress of grievances.”

-Cornell University's Legal Information Institute

Definition of Terms

Defamation

Making of false, derogatory statement(s) in private or

public about a person's business

practices, character, financial status, morals, or reputation.

Oral defamation is a slander whereas printed or published

defamation is a libel.

http://www.businessdictionary.com/definition/defamation.ht

ml#ixzz232DPOW2m

Definition of Terms

Privacy/False Light

False light is one of the four categories of "privacy torts" (the

others being intrusion, and publication of private facts and misappropriation).

False light invasion of privacy occurs when information is

published about a person that is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light.

- Citizen Media Law Project (2008)

False light includes embellishment (the addition of false

material to a story, which places someone in a false light),

distortion (the arrangement of materials or photographs

to give a false impression) and fictionalization (references

to real people in fictitious articles or the inclusion in

works of fiction of disguised characters that represent

real people).

Although this tort is similar to defamation, it is not the

same. The report need not be defamatory to be

actionable as false light.

Libel Laws of the Philippines

Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

The law also presumes that malice is present in every defamatory imputation.

[Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67]

Summary of the Article

In the last two decades network television newsmagazines, in an endless search for ratings, which translates into revenues, have declared war on the right of privacy.

The hidden camera is “infotainment” masquerading as journalism, pandering to the most base emotions, including voyeurism, with eavesdropping used to obtain the scandalous footage.

A hidden camera story is essentially a “grainy little morality play,” edited to heighten the entertainment value, where journalists go undercover to mythologize their work by becoming protagonists, modern “folk heroes” who ferret out wrongdoing as the superheroes of pop culture.

Summary of the Article

Undoubtedly, the most insidious and frightening intrusion cases involve an expectation of privacy, with spies working in conjunction with an enemy or competitor of the victim to set up the fraud.

In addition to intrusion and/or statutory privacy claims (or in the case of business entities, non-privacy claims), this Article contends that hidden cameras portray individuals in both a defamatory manner and in a false light—by definition and by design.

Constitutional malice should therefore be easy to prove in hidden camera cases—indeed, it should be presumed.

Role of the Hidden Camera

Hidden cameras as the drive-trains, becoming "the

preeminent profit engine” for network television while

needing to compete with each other, cable and a host of

non-news programs.

Hidden cameras create the tendency to perpetrate

deception ( e.g. entrapping" persons via "scams or stings"

using "staged" scenes)

Radio-Television News DirectorsAssociation

Code of Ethics and Professional Conduct

1. Deception demeans journalism. Because journalism is "centered on the question of truth," dishonest tactics undermine the public's confidence in the integrity of all journalists and therefore all news.

2. Deceit undercuts the credibility of the facts actually revealed. Like sloppy reporting, it diverts attention from the revelations and instead focuses debate upon the newsgathering process.

3. A journalist should use deceit only to expose very serious wrongdoing and as a last resort, when traditional reportorial techniques have failed.

4. Deceptive techniques often present a substitute for the traditional tools of investigative reporting, a process that is often tedious, time-consuming, and expensive.

5. Undercover techniques, especially the use of hidden cameras, invade privacy.

6. Deception may rise to the level of entrapment, as reporters incite conduct by the target that supports the pre-conceived story line. Plus, hidden cameras create an atmosphere of corruption that insinuates wrongdoing when none has occurred.

7. Lying is wrong. Utilitarian arguments for using deception to reveal serious wrongdoing are flawed because the party responsible for balances the equities (that is, the reporter) is self-interested.

Case

Cases For Constitutional Malice 1. Common Law Malice as Probative of

Constitutional Malice

Common law malice does not suffice to prove constitutional malice. However, reason and the weight of precedent indicate that proof of common law malice supports a finding of constitutional malice when combined with other more substantial evidence of a defendant’s bad faith, or other indications of malice.

Case: Celle vs. Filipino Reporter Enterprises, Inc.

2. A Preconceived Slant and/or Story Line is Probative of Constitutional Malice

Cases For Constitutional Malice

3. Network’s Use of Hidden Camera Stories to Increase Profits: Economic Motivation as Proof of Constitutional Malice

This is when networks air hidden camera stories during sweep weeks – certain weeks designated periodically throughout the year where ratings are measured to determine total market shares

4. Constitutional Malice Is Shown by the Commission of Any Eavesdropping Tort and Crimes that Enable the Making of the Defamation

Defendants are willing to circumvent the law on the basis of what they believe is truth (case of Food lion vs. ABC)

Cases For Constitutional Malice 5. False Editing by Omission, Distortion and

Juxtaposition May Be Defamatory and Made with Constitutional Malice

Deleting a material that favors the plaintiff or altering his words

6. The Nature of the Intentionally Damaging Hidden Camera Depiction as Evidence of Constitutional Malice

Intend to catch people unaware, make them look flustered, evasive and unbelievable- frustrating reasoned and thoughtful responsiveness

Cases For Constitutional Malice 7. Constitutional Malice Can Be Established by a

Decision to Publish in the Face of Known Contradictory Information

Failure to consider contradictory evidence

8. Application by Analogy of the "Obvious Reasons to Doubt" Standard for Third Party Sources to the Format and Methodology of Hidden Cameras

Using biased third party sources

9. Deviation from Professional Standards as Evidence of Constitutional Malice

Deficiency in investigation and exhaustion of alternative methods

Local Cases

Points of Discussion:

Many journalists continue to believe that they are

involved in a calling so high as to entitle them to rights

not given to ordinary citizens.

Are media professionals bound by the same

standards of moral conduct as the citizens they

serve?

Points of Discussion:

Why is privacy important to discuss in media ethics?

If the central idea of justice is fairness, meaning all

individuals are treated alike in terms of what they should

deserve, what journalistic guidelines should media

practitioners employ as far as deception and privacy

issues are concerned?