The Double Standard


Flipping through TV channels the other night, a program hosted by John Quinones called “Primetime: What Would You Do?” was airing on ABC. As hidden cameras spied on unsuspecting shoppers, the program had a kid swipe a purse from a shopper as another shopper watched. The game was to videotape the reaction of the bystander shopper. Then Quinones would sneak out from behind the meat counter belly-laughing at the stunt he had just pulled. How is this TV game any different than a morning show recording a caller — without prior knowledge — trying to entertain the audience? The answer is simple, It’s not. So, we took the question to broadcast attorney John Garziglia for a better explanation.

Radio Ink asks:  Why are TV stations allowed to videotape average everyday people (like John Quinones) without their knowledge beforehand and radio not allowed to record? Seems hypocritical.

John Garziglia says:  John Quinones is the host of “Primetime: What Would You Do?” which is an ABC television show that broadcasts surreptitious video recordings of people in various scenarios, usually depicting injustices or illegal activity, and looking at what people actually do when confronted with those scenarios.   The videotaped subjects do not appear to have given their previous consent to be videotaped although may very well give releases or consents after being videotaped.

The simple answer as to why television stations may surreptitiously record video for broadcast in advance, while radio stations cannot surreptitiously record telephone conversations for broadcast, is that there is a specific FCC rule that prohibits, with certain narrow exceptions, broadcasting, or recording for later broadcast, a telephone conversation without prior notification.  The FCC explained in a recent decision that its longstanding policy against recording and broadcasting telephone conversations without the other party’s knowledge is “that prior notification is essential to protect individuals’ legitimate expectation of privacy and to preserve their dignity by avoiding nonconsensual broadcasts of their conversations”.   Notably, the rule does not limit itself to radio stations.  The same rule applies to television stations.

As a general matter, it is worth noting that there is a wide divergence in laws governing video recording, still photography, and audio recording.  Audio recordings are often more strictly regulated and are often illegal where in the same situation a photograph or video recording without audio may be legal.

But, back to the apparent ability of television stations to surreptitiously record video.  Prudent television stations almost certainly subject surreptitious video program production methods and the  resulting video to a full review for legal compliance.  While generally speaking surreptitious video recordings have fewer restrictions than do surreptitious audio recordings, in recent years even the video recording of very public structures such as bridges and modes of transportation may be illegal for security reasons.  Also, secret video recordings in places such as bathrooms, bedrooms and other places where individuals have a high expectation of privacy are also subject to legal action.

The legality of audio and video recordings of public proceedings such as in a courtroom or of a city council meeting varies depending upon the state and the municipality.   With surreptitious audio recordings, whether a conversation may be legally recorded with the knowledge of just one person to the conversation (i.e. the tie-pin microphone), or whether the consent of all parties must be obtained to legally record a conversation, widely varies from state to state. Audio recordings of even conversations in public places may be prohibited by a particular state’s wiretap laws while there may be no like prohibition against video recordings in the same public place.

Radio station news reporters and managers need to apprise themselves of the specific laws regarding audio recordings in the particular states and localities in which newsgathering activities take place.  Since radio stations are now often also utilizing video on their websites, a like appraisal of the laws on video recording in the state and locality should take place.

In addition to laws prohibiting certain audio and video recordings, legal issues regarding slander, defamation and libel, among others, can arise with video and audio recordings.   Legal issues in surreptitious video and audio recording can also include: false light laws protecting a person’s mental or emotional well-being against publication of information that, while true, may be misleading; legal prohibitions against the use of a person’s name, likeness or identity for trade or advertising purposes without consent; legal prohibitions against the physical, electronic or mechanical intrusion into someone’s private space; and legal prohibitions against the broadcast of embarrassing private facts about an individual that are non-newsworthy and highly offensive to a reasonable person.

With broadcast stations and telephone conversations, the law is clear that a prior notification must be given to the party or parties to a telephone call that is being broadcast, or recorded for later broadcast, with the narrow exception of a call-in or request line radio show for which the calling party expects to be recorded and broadcast.   Even though there are different and possibly more relaxed standards for surreptitious video recordings as compared with audio recordings, surreptitious video recordings on television programs like “What Would You Do” and the historical “Candid Camera” clearly raise a plethora of legal issues.

While it is impossible to precisely characterize when a surreptitious recording might raise legal issues, it is worthwhile remembering the “Golden Rule” admonition.  Ask yourself that if you were the subject of the recording, would the broadcast or publication of the surreptitious recording infuriate you because it invades your privacy, offends you, makes you look stupid, makes you appear to be someone other than who you are, or uses your likeness to promote something?  If the answer is yes, then that is huge signal that management and possibly legal counsel should be involved in any decision to broadcast the surreptitious recording.


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