hidden cameras

It may have been a critical juncture for undercover TV, but it sure didn't look like much. ABC's PrimeTime Live spent three months trying to document that a 900 telephone number offering advice from "live psychics" was, if not a total sham, at least a lousy way to spend $ 3.49 a minute. "Hello, Telepsychic" ran in February 1993, and now ABC gets its payback for illustrating what most viewers probably already assumed.

Last summer, a California jury decided the show's use of "hat-cam" hidden-cameras violated the privacy of the plaintiffs, two men who gave readings, and in what seems to be the first such decision against a newsmagazine show, awarded them more than $ 1,000,000 in actual and punitive damages. Now the judge is threatening further steps, in a state noted for its tough attitude toward clandestine recording. The case is likely to cast a shadow across the lenses of TV's powerful hidden-camera tools (see "Truth, Lies, and Videotape," CJR, July/August 1993).

To view "Hello, Telepsychic" is not exactly to be riveted by great investigative work. Through hidden cameras we see an ABC operative at work, offering advice to customers from a tarot card crib sheet. One of the plaintiffs is seen speaking wistfully about managing rock bands; the other about working in comedy, as if the psychic business was just a way to make a buck. The piece implied that the fortune tellers didn't believe in what they were selling. Yet the jury spent two days watching outtakes in which workers talk as if they believe they are psychics. "The jurors were astonished and appalled," says the winning attorney, Neville Johnson of Los Angeles.

The ads for the psychic line warn that they are "for entertainment purposes only." And in the segment, PrimeTime notes that the card-reading service had done nothing illegal, yet makes the point that the customers are largely undereducated people with significant vulnerabilities who can little afford the hefty phone charges, which typically run $ 30 a call.

Johnson argued that ABC had no right to secretly him and viligy by association private individuals who had done nothing illegal. He painted a picture of damage done to the lives of the plaintiffs by their few seconds of fame: ridicule and humiliation before millions of viewers. One plaintiff, the lawyer told the court, received 134 irate phone calls within 48 hours of the show. The lawyer says the program exacerbated one client's severe alcoholism -- he died during jury deliberation. His clients, he says, were never asked to respond to the implications of the edited footage.

ABC would have preferred that the case be viewed as a press freedom issue, contending it had every right to go into a business offering its services to the public and show what goes on there. But Superior Court Judge Bruce Geernhaert insisted it be treated like any other case. He took ABC off the hook for its audiotaping -- although California's penal code clearly outlaws the audiotaping of confidential communications. ABC argued that the scenes and conversations it captured were not confidential, since they took place in a large open office and other gathering places, where they could easily have been seen and heard by others. In the end, Judge Geemhaert allowed the case to proceed on the question of whether secretly videotaping the plaintiffs was an invasion of their privacy.

In recent weeks, the judge, declaring that ABC's attitude indicated it had learned nothing from the case, has threatened to issue an injunction barring the network from using hidden cameras in California workplaces closed to the public. If so, says a spokesperson, Capital Cities/ABC "would vigorously oppose it."

Attorney Johnson argues that the bigger debate must be over what he considers the media's self-appointed role in undercover work. "Since when did journalists get quasi-police powers?" he says. "The police and FBI have to go to court to get permission to do this stuff."

Television journalists might phrase it differently, but they've been struggling with the same issue. The Society of Professional Journalists, for example, has produced a checklist of conditions it thinks ought to be met before a hidden camera is employed. First on the list: when the information is of "profound importance" and "vital public interest." Don Hewitt, executive producer of CBS's 60 Minutes, has his own rule of thumb: a person's right to privacy is forfeit when he's up to no good, Hewitt says, but he insists that news organizations ought to choose carefully when they use hidden cameras and be sure they're showing real culprits.

Johnson says he has filed two additional hidden-camera lawsuits, one related to the same PrimeTime segment, and that other potential hidden-camera victims have surfaced. He hopes that by the time he's finished, news organizations will have decided that there are other ways to get the story. Meanwhile, the chill has set in. "There's been something of a backlash to those pieces here," says a knowledgeable ABC News source. "They're not doing them as much. They've definitely tightened things up, and in doing so made it more difficult to get good pieces on the air."

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