Desnick v. American Broadcasting Cos.

United States Court of Appeals for the Seventh Circuit · 1995 · Property

Propertytrespassconsent procured by fraudundercover journalismtestersdefamationsubstantial truthincremental harm

Facts

ABC told Dr. Desnick it wanted to do a fair and balanced segment on large cataract practices and, with his permission, filmed at the clinic's Chicago office and obtained an informational videotape. At the same time, ABC sent seven individuals with concealed cameras into Desnick Eye Center offices in Wisconsin and Indiana posing as patients, and some physicians, including Glazer and Simon, were secretly videotaped recommending cataract surgery. The broadcast accused the Center of unnecessary surgery and included statements implying the clinic's glare-testing machine was rigged, including footage of Glazer and Simon asking about glare just before the machine-rigging accusation. Plaintiffs sued for defamation and for torts based on the undercover entries, recordings, and alleged false promises used to obtain access.

Issue

Whether the complaint stated claims for defamation based on the glare-machine accusation and for trespass, privacy invasion, illegal wiretapping, and fraud based on ABC's undercover investigative methods. More specifically, the court had to decide whether consent obtained by misrepresentation made the undercover entries actionable trespasses and whether the alleged false promises supported an Illinois fraud claim.

Rule

A misrepresentation used to gain entry does not automatically make the entry a trespass; the question is whether the entry invaded the specific interests that trespass protects, namely the ownership or possession of land and private space. In defamation, a plaintiff may proceed if viewers would likely understand the statement to refer to the plaintiff, and dismissal on substantial-truth or incremental-harm grounds is proper only when it is clear on the record that the challenged falsehood could not have caused significant additional reputational injury. Under Illinois law, promissory fraud is not actionable unless the false promises are part of a scheme to defraud, meaning particularly egregious conduct or promises embedded in a larger pattern of deceptions that reasonably induces reliance.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A television producer in Milwaukee sends an intern posing as an ordinary customer into Lakeview Hearing Group, a clinic that advertises free hearing screenings to the public. The intern secretly records only her own consultation with a specialist in the reception-area exam room open to all screening clients and leaves without disrupting operations.

If Lakeview sues for trespass based solely on the intern's deceptive purpose in entering, which is the strongest analysis?

Explanation. The majority rejected any automatic rule that consent procured by deception is always ineffective. The question is whether the entry invaded the interests trespass protects: ownership, possession, private space, or similar property interests. Entry into a business area open to strangers seeking services, combined with ordinary professional interactions and no disruption, is not the kind of invasion trespass targets. The court also specifically rejected any general journalists' privilege to trespass. (Derived from Desnick v. American Broadcasting Cos. (1995).)