Wilkins v. National Broadcasting Co.
84 Cal. Rptr. 2d 329, 71 Cal.App.4th 1066, 99 Cal. Daily Op. Serv. 3194 (1999)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under California law, media defendants do not commit actionable intrusion upon privacy, unlawful recording, or fraud when their journalists secretly videotape and record a business meeting in an outdoor patio of a public restaurant, provided there is no objectively reasonable expectation of privacy in such a setting, no duty to disclose journalistic identity, and the information discussed is of legitimate public concern.
Facts:
- In 1994, SimTel Communications (SimTel) leased and programmed 800 and 900 telephone lines, then sold these lines to investors as part of the growing pay-per-call industry.
- Dateline NBC (NBC) producers, Jack Cloherty and Sandra Surles, responded to SimTel's national advertisement for investors in USA Today as part of an investigation into the practice of charging for services on "toll-free" 800 lines.
- Without revealing their association with Dateline NBC, Cloherty and Surles arranged to meet SimTel representatives Stephen F. Wilkins and Thomas R. Scott.
- Wilkins and Scott met Cloherty, Surles, and two other undisclosed individuals at an outdoor patio table at a public restaurant in Malibu.
- During the lunch meeting, Wilkins and Scott openly explained how SimTel conducted business and the functionality of its 800- and 900-number products, delivering a sales pitch they had previously given to many other potential investors.
- NBC secretly videotaped and audiotaped the entire lunch meeting using hidden cameras, later broadcasting brief excerpts of the footage in a report titled "Hardcore Hustle."
Procedural Posture:
- On August 1, 1995, SimTel Communications, Stephen F. Wilkins, and Thomas R. Scott filed a complaint against the National Broadcasting Company, Inc. (NBC) and others in California state court, alleging various causes of action, including physical intrusion on solitude, unlawful recording, and fraud.
- SimTel subsequently dismissed all of its claims with prejudice, and Wilkins and Scott dismissed some defendants (including Geoffrey's Malibu) and several causes of action (including violation of right of privacy, defamation, and false light).
- On October 4, 1996, Wilkins and Scott moved for summary adjudication on their second cause of action for fraud.
- On the same day, NBC moved for summary judgment on the entirety of Wilkins and Scott's complaint.
- The trial court denied Wilkins and Scott's motion for summary adjudication and granted NBC's motion for summary judgment.
- Judgment was entered by the trial court on November 14, 1996.
- On December 27, 1996, the trial court denied Wilkins and Scott's motion for a new trial.
- Wilkins and Scott (appellants) timely filed a notice of appeal to the California Court of Appeal, Second Appellate District (this court).
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the secret videotaping and recording by news producers of a business meeting held in an outdoor patio of a public restaurant, without disclosing their journalistic identity, constitute an actionable invasion of privacy, unlawful recording of confidential communications, or fraud, where the discussion concerns a newsworthy commercial practice?
Opinions:
Majority - Kitching, J.
No, the secret videotaping and recording by NBC producers of a business meeting in a public restaurant did not constitute an actionable invasion of privacy, unlawful recording, or fraud. The court found that Wilkins and Scott had no objectively reasonable expectation of seclusion or solitude in the outdoor patio of a public restaurant while discussing business matters with strangers. The meeting took place in a crowded public setting with waiters present, and the information shared was a standard sales pitch, not private. Therefore, there was no intrusion into a private place, conversation, or matter, and NBC's actions were not highly offensive to a reasonable person. Regarding the unlawful recording claim under Penal Code section 632, the court determined that the conversation was not "confidential." Wilkins and Scott spoke openly about SimTel's business to virtual strangers in a public place, and Wilkins admitted the sales discussion contained no secrets he hadn't shared with other potential investors. Objectively, there was no reasonable expectation that the conversation would be confined to the parties. For the fraud claims, Wilkins and Scott failed to establish justifiable reliance on any alleged misrepresentations (such as the producers' identities or marital status) because their deposition testimony indicated they would have provided the same business information regardless. Furthermore, the court found no fiduciary or special relationship existed between the parties that would impose a duty on the producers to disclose their journalistic identity, nor were the undisclosed facts "material to the transaction" of a public business pitch. Civil Code section 1572 was inapplicable as no contract was formed between the parties. Finally, the public disclosure of private facts claim failed because the information disclosed (names, likenesses, voices, and occupations at SimTel) was deemed of legitimate public concern. The broadcast investigated a newsworthy issue (the pay-per-call industry loophole), and the use of the plaintiffs' identities added authenticity and clarity to the story, serving a "legitimate descriptive and narrative" purpose rather than a "morbid and sensational prying into private lives." Given these findings, the emotional distress claims also failed, as the conduct was not deemed extreme and outrageous, and no duty to disclose was established for the negligence claim.
Analysis:
This case significantly clarifies the boundaries of privacy rights against media intrusion in California, especially regarding interactions in public settings concerning newsworthy topics. It establishes a high bar for plaintiffs seeking to claim invasion of privacy, unlawful recording, or fraud when journalists use surreptitious methods to investigate matters of public concern. The ruling reinforces that a "reasonable expectation of privacy" is an objective standard, not a subjective one, and that the absence of a special relationship typically negates a journalist's duty to disclose their identity during an investigation. This precedent strengthens First Amendment protections for newsgathering, allowing journalists greater latitude to expose potentially deceptive commercial practices, even through deception, as long as the location lacks an objective expectation of privacy and the content is newsworthy.
