Once again, a federal appeals court has allowed plaintiffs to win claims against a news story based on theories conjured up by the imaginative plaintiffs’ bar, accusing the news reporter of "tortious" newsgathering, even though the libel and privacy claims failed. This time, the story was about over-tired truckers. Next time, it may be your investigative story, so heed this column and set aside the fact that this is a television story.
     NBC’s Dateline was prompted by the deaths of four teenagers to produce a story about the working conditions for truckers who do long-distance driving. The deadly accident occurred in a case where the trucker pleaded guilty to falsifying his driving logs.
     Dateline’s producers approached a truck driver and the owner of the trucking company to pitch their story and to ask whether they could ride along with the driver to tape his return on a round trip from Maine to California. According to the court’s narrative, the plaintiffs said that Dateline promised to do a "positive" story and that it would not interview "Parents Against Tired Truckers" (PATT) for the story.
     When the story was broadcast, the truck driver, the truck company owner and the owner’s wife sued NBC including claims for defamation, misrepresentation, negligent infliction of emotional distress, and invasion of privacy. They maintained that the truck driver was portrayed as an unsafe driver who regularly violated federal rules, and who had used illegal drugs shortly before the program was filmed. Dateline’s broadcast also suggested, according to the court, that many truck companies, Ray’s included, encouraged or tolerated such behavior. Interspersed throughout the story were comments from representatives of PATT.
     While the appeals court reversed a jury’s $500,000 verdict for the plaintiffs on libel and privacy grounds, it left open the door to finding Dateline liable because of its interposing PATT’s comments on unsafe truck driving with the evidence that the plaintiffs were condoning or carrying out those activities. The liability occurs because Dateline allegedly promised in advance that PATT would not be in the story. The court’s reasoning wanders into implausibility:
     While much depended on how matters played out – whether in fact the truck driver broke the law and engaged in conduct supported by Dateline’s themes of tired and dangerous truckers – a jury could reasonably find that Dateline set up the truck company owner as a potential villain of the piece and certainly was well aware that the surreptitious insertion of PATT’s representatives into the program could only sharpen that image.
     The case has been sent back to the trial court to work out the damages for the misrepresentation. Damages may not include any overall negative impact from the entire story, but may include any specific damages caused by the presence of the PATT remarks. In other words, in my view of this case, Dateline is liable for publishing PATT’s criticism about unsafe truck driving because Dateline told the subjects of the story that they would not interview PATT.
     The lesson from this decision is that reporters should make no specific promises about how a story will be developed, investigated, or published unless you can keep the promises. Obviously you usually have little control over the way a story develops, so my thought is that this kind of promise is probably foolhardy. Furthermore, reporters and editors must agree before making any promise, because earlier cases have taught us that editors can’t reverse reporters’ promises without risking the same kind of liability. Another unfortunate conclusion is that simply publishing an accurate story is no longer a sufficient defense.
      This decision is called Veilleux v. NBC and was decided by the First Circuit Court of Appeals, which covers New England, on March 6th of this year. The decision is not "controlling" in Maryland, Delaware or D.C., but can be cited by plaintiffs as "persuasive" law in similar claims. This and other newsgathering issues will be covered in MDDC’s summer newsroom seminar, which takes place on June 29th at the Crofton Country Club. Be sure to register.