A Message about Reporting Methods: Make No Mistake

(This article was originally published in "Hidden Cameras/Hidden Microphones: At the Crossroads of Journalism, Ethics and Law," a 1998 publication from the Radio-Television News Directors Foundation (RTNDF)

There was a time when "truth" was a journalist’s strongest defense in the court of law. That may no longer be the case. Perhaps just as importantly, the journalist’s claim to be a "truth seeker" may not carry much weight in the forum of public opinion. The ramifications of recent jury verdicts and the implications of the erosion of credibility are profound.

Journalists are more often being challenged not just on the end product of their work, but on how they gather information. Increasingly, the objection is to the methods reporters and photographers use in quest of the "truth."

Food Lion successfully took ABC to court over matters of fraud and trespass, employing a legal strategy that sidestepped questions about the truth of a PrimeTime Live investigative report on the supermarket.

More recently, a trucker and his company successfully convinced a jury in Maine that Dateline NBC journalists misrepresented to the trucker the nature of the story NBC was reporting about safety problems in the long-haul trucking industry. Again, the truth of the report was not the central issue. The focus of the trial was on fairness and the way journalists behaved. The jury discounted allegations of wrongdoing by the trucker because of the journalists’ methods in getting the story.

An "Ends Justifies the Means" Disconnect

Fairness, or the lack thereof, is the linchpin strategy used by other targets of investigative reports as they strike back at news organizations. Cincinnati-based Chiquita Brands International mounted an immediate and powerful retaliation against The Cincinnati Enquirer after the paper published a lengthy investigative story alleging extensive wrongdoing by Chiquita. While Chiquita challenged the substance of the stories, their counter attack concentrated on how the paper’s reporter illegally obtained confidential company voice mail. The mere threat of legal action forced the newspaper to issue a prominent public apology and give Chiquita a multi-million dollar mea culpa.

These prominent cases reflect the strategies other individuals and corporations are using to battle back when they feel harmed by news reports. More plaintiffs are using elements of privacy law to attack the newsgathering techniques of reporters and photographers as they cover accidents, drug raids, and shady business practices. And, in some cases, the torts of intrusion and intentional infliction of emotional distress are central issues in the complaint. While truth remains a core defense in defamation cases, juries are increasingly using the behavior of journalists as a measuring stick for wrongdoing. Jurors don’t buy the "ends justifies the means" argument when the methods are unethical.

Ethics on Trial

What does all of this have to do with broadcast journalists using hidden cameras? There is, I suggest, a direct and important connection. When journalists misuse hidden cameras, they undermine what legitimacy the tool has and invite public anger and backlash.

Stations that send crews into the field to surreptitiously record tape must pay serious attention to what is happening on the legal front. The consequences from hitting a land mine can be profound. Damage awards or out-of-court settlements can be considerable and legal expenses are significant. Beyond that, there is an "angst" cost to news organizations in fighting lawsuits, even those that may be frivolous. Time spent worrying about courtroom battles is time away from running the newsroom and telling stories.

I believe there is a direct and significant connection between the legal and ethical issues involved in using hidden cameras and microphones. While jurors are instructed to make decisions based on the application of law, it is not unreasonable to expect that these jurors, human beings all, turn in some way to their impressions about the ethics of the journalists. The legal issues of fraud speak to the ethical principle of honesty. Intentional infliction of emotional distress is the legal cousin of an ethical failure to show compassion. Intrusion is the legal side of an ethical responsibility to respect an individual’s privacy.

Harm is about legal liability and it is about ethical responsibility. Jurors may be casting ballots about fraud, intrusion and trespass. However, their views are bound to be affected by matters of journalistic fairness, balance, honesty and professionalism.

To borrow a familiar phrase, and edit it to make the point, "It’s the ethics, stupid."

A Duty of Care

I don’t believe that jurors in a courtroom or viewers in their living room would always turn a thumbs down on journalists using hidden cameras or microphones. In fact, some jurors in the Food Lion case said they were not offended by the use of the hidden cameras to document the problems that existed in a Food Lion meat department.

But what is offensive to many is irresponsible and unprofessional use of this powerful tool. The public should object when news organizations use hidden cameras as a "gotcha" grabber that merely serves promotion and discounts legitimate newsworthiness. They should object when hidden cameras just spotlight the misbehavior of the "little guy" and fail to address the serious wrongdoing of "kingpins". The public should object when hidden camera footage is used inappropriately in stories creating a tone of wrongdoing that is out of proportion and out of context to fact. They should object when hidden camera stories offer thin, anecdotal slices of evidence of wrongdoing and ignore the complexity and layers of the larger story.

It is that objection, rooted in concerns of fairness or the lack thereof, that underpins a public distrust of the news media. And, it is that objection to the unprofessional behavior of journalists that helps produce jury verdicts against news organizations.

Hidden camera reporting is a justifiable weapon in the arsenal of journalists, but it must be used wisely and judiciously. News directors, executive producers, reporters and photojournalists must apply a significant duty of care. If they don’t, the value of hidden cameras is greatly diminished and the probability of harm to your station and our profession is greatly increased.

(This article was originally published in "Hidden Cameras/Hidden Microphones: At the Crossroads of Journalism, Ethics and Law," a 1998 publication from the Radio-Television News Directors Foundation (RTNDF), as part of their News in the Next Century Project. You can request copies of the complete publication by contacting RTNDF at:

Radio and Television News Directors Foundation
1000 Connecticut Ave., NW, Suite 615
Washington, DC 20036-5302
Phone: (202) 659-6510
Member line: (800) 80-RTNDA [(800) 807-8632]
Fax: (202) 223-4007
E-mail: rtnda@rtnda.org; rtndf@rtndf.org