In recent years, there has been an increasing number of media cases involving the branch of invasion of privacy called "intrusion." This tort requires that one who has a reasonable expectation of seclusion have his seclusion intentionally invaded in a manner highly offensive to a reasonable person. Thus, a corporate executive sitting in his private office guarded by a secretary in an anteroom has an expectation of seclusion and separation that he forfeits when he ventures out onto a public street on his way to lunch; there he may be confronted by a reporter with a tape recorder or camera.

   The dichotomy based on the reasonable expectation of privacy was discussed this year in the dramatic case of Shulman v. Group W Productions, Inc., decided by the California Supreme Court (18 Cal. 4th 200, 955 P.2d 469, 74 Cal. Rptr. 2d 843 (1998)). There Ruth Shulman was involved in a serious automobile accident and was trapped for a considerable period of time in the wreckage near a public highway before being extricated by rescuers using the "jaws of life" and placed aboard a medivac helicopter.

   The flight nurse reaching Shulman before her rescue was wearing a wireless microphone that picked up the nurse's conversation with the somewhat incoherent victim. The microphone had been supplied by a video camera operator employed by Group W and 4MN Productions who was recording the wreckage and the ensuing rescue.

   As Shulman was being loaded onto the helicopter on a stretcher, the microphone caught her saying "I just want to die. I don't want to go through this." Once they were airborne, the microphone continued to activate a recorder and transmit to the hospital the nurse's description of the victim's vital signs and her apparent paraplegia. The camera operator continued to run the camera while in flight and the video footage included a few seconds of the victim's face, covered by an oxygen mask. The videotape was later edited and mixed with the sound recorded from the wireless mike. The edited tape was aired on KNBC Channel 4 as a segment of a continuing news feature called "On Scene: Emergency Response." Shulman had never consented to being recorded in this way and was unaware of the microphone.

   Shulman later sued the producers of "On Scene" for intrusion and the separate privacy tort of public disclosure of private facts. The media defendants moved for summary judgment. The trial court granted their motion and entered judgment for the defendants on all causes of action. The court of appeal reversed and remanded as to some causes of action. On petition for review, a badly split California Supreme Court affirmed the court of appeal in part and reversed and remanded in part.

California Supreme Court Ruling

   In a plurality opinion, the court rejected the claim of publication of private facts by noting that California plaintiffs asserting such causes of action have the burden of showing that the publication complained of was not "newsworthy." Newsworthiness of the publication is a complete bar to recovery in California. The court concluded that the human drama here played out on television had social value, was of legitimate public interest, and was therefore newsworthy. Summary judgment was thus proper. That the publication here might have been presented differently and with less clinical detail did not defeat the newsworthiness of the broadcast. "The courts do not, and constitutionally could not, sit as superior editors of the press." (18 Cal. 4th at 228, 955 P.2d at 488, 74 Cal. Rptr. 2d at 861).

   Turning to the intrusion tort, the plurality justices first ruled that the complaint raised a triable issue as to whether the victim had an objectively reasonable expectation of privacy in the interior of the rescue helicopter and, earlier, when trapped in the car where her initial conversation with the flight nurse was recorded. The car had come to rest in a ditch many yards from and below the elevation of the highway.

   Regarding the interior of the medivac helicopter, the plurality said that it was unaware of "any law or custom permitting the press to ride in ambulances or enter hospital rooms during treatment without the patient's consent." (18 Cal. 4th at 231, 955 P.2d at 489, 74 Cal. Rptr. at 863) (Compare Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942) (publishing company held liable for printing a photograph of a woman in a hospital bed suffering from a rare disease, taken by a wire service photographer who entered her room without consent).

   As to the earlier situation in which the plaintiff was trapped in her car away from the highway, the three-justice plurality did not focus on the plaintiff's physical circumstances but rather on the general expectation of privacy and confidentiality when she conferred with rescue personnel regarding her medical condition. The plurality said that by placing a microphone on the nurse's person, amplifying and recording what she said and heard, the defendants may have intruded on conversations the plaintiff could reasonably have expected to be private. It rejected the approach of the court of appeal that there could be no expectation of privacy by the victim because she was within the sight and sound of the public. The plurality pointed out that the ditch was far removed from the highway and below its elevation making electronically unaided observation of the victim and her words unlikely. But the plurality held this alleged intrusion to be a triable issue because it could not say as a matter of law that the defendants' camera operator should have perceived that he might be intruding on a confidential medical conversation.

   On the question of offensiveness of the claimed intrusion, the plurality held this also to be a triable issue. The plurality believed that a reasonable jury could find the necessary degree of offensiveness based on the placement of the microphone on a rescuer without the injury-wracked victim's knowledge, thereby taking advantage of her vulnerability and confusion. Essentially the same point could be made after she had been removed to the helicopter.

   Finally, on the defendants' claim that the First Amendment protects them in their legitimate newsgathering activities, the plurality observed that the decisional law "reflects a general rule of non-protection: the press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws," citing, inter alia, Cohen v. Cowles Media Co., 501 U.S. 663, 669-70 (1991) (common law promissory estoppel), and Dietemann v. Time, 449 F.2d 245, 249 (9th Cir. 1971) (common law torts).

   The other four justices either disagreed with the affirmance of the summary judgment on the publication of private facts cause of action or with the reversal of the summary judgment on the intrusion cause of action.

   The case provides considerable food for thought regarding plaintiffs' claims of media intrusion and media claims of First Amendment immunity from common law tort liability.