Anderson v. Fisher Broadcasting Companies, Inc.

CourtSupreme Court of Oregon
Writing for the CourtLINDE
Citation712 P.2d 803,300 Or. 452
Parties, 54 USLW 2419, 12 Media L. Rep. 1604 Richard ANDERSON, Respondent on Review, v. FISHER BROADCASTING COMPANIES, INC., a Washington corporation, dba KATU TV, Petitioner on Review. TC A8302-00744; CA A30110; SC S31676.
Decision Date07 January 1986

Page 803

712 P.2d 803
300 Or. 452, 54 USLW 2419, 12 Media
L. Rep. 1604
Richard ANDERSON, Respondent on Review,
corporation, dba KATU TV, Petitioner on Review.
TC A8302-00744; CA A30110; SC S31676.
Supreme Court of Oregon,
In Banc.
Argued and Submitted Sept. 3, 1985.
Decided Jan. 7, 1986.

Page 804

[300 Or. 453] John R. Faust, Jr., Portland, argued the cause, for petitioner on review. With him on the petition were Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Gregory Kafoury, Portland, argued the cause, for respondent on review.

[300 Or. 454] LINDE, Justice.

A television cameraman for defendant broadcasting company photographed the scene of an automobile accident in which plaintiff was injured. Plaintiff was recognizable and was shown bleeding and in pain while receiving emergency medical treatment. Defendant did not use the video taped pictures or report the accident on its regular news program. Some time later, without seeking plaintiff's consent, defendant used a brief excerpt showing plaintiff to illustrate promotional spots advertising a special news report about a new system for dispatching emergency medical help.

Plaintiff sued for general damages for mental anguish, alleging that defendant "violated plaintiff's right to privacy" by "appropriating to defendant's own use and advantage" the pictures its photographer had taken of plaintiff and by "publicizing" his picture in a condition "offensive to a reasonable person" and not of legitimate public concern. In defense, the broadcaster asserted that its use of plaintiff's picture occurred in advertising another news program, that this use was constitutionally privileged and that the undisputed facts gave rise to no common-law claim. The trial court gave summary judgment for defendant, holding that the pictures were

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"newsworthy," that they remained so despite not being promptly published, and that they did not lose their newsworthiness when used only to advertise another newsworthy broadcast.

The Court of Appeals held that there was an issue of fact whether the film showing plaintiff's injured condition was newsworthy, because it was not used to report plaintiff's accident itself but only to draw viewers for a different program in which the accident was not mentioned. The court did not discuss the parties' other legal theories beyond rejecting defendant's First Amendment claim. Anderson v. Fisher Broadcasting Companies, Inc., 72 Or.App. 539, 696 P.2d 1124 (1985).

In this court, defendant again stressed its constitutional claims along with its common-law arguments, understandably so in defending against a tort claim for wrongful publicity to which media of mass communication are peculiarly vulnerable. The constitutional issues are significant. The right to "speak, write, or print freely on any subject [300 Or. 455] whatever" guaranteed by Article I, section 8, of the Oregon Constitution accommodates laws providing civil responsibility and remedies (though not punitive damages) for an "injury done another in his person, property, or reputation," as guaranteed in Article I, section 10, if the interest said to be injured falls within section 10 and if the defendant's expression meets the test of the word "abuse" in section 8. 1 See Wheeler v. Green, 286 Or. 99, 118, 593 P.2d 777 (1979) (defamation); Hall v. The May Dept. Stores, 292 Or. 131, 145-46, 637 P.2d 126 (1981) (intentional infliction of emotional distress in questioning an employee suspected of theft). The First Amendment status of tort claims such as those asserted here is unsettled. 2

We therefore included the constitutional issues among the questions that we submitted to counsel before [300 Or. 456] argument. 3

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But we shall not decide this case on constitutional grounds when it is unnecessary to do so, and when a premature decision would foreclose legislative consideration. 4 In the present case, we hold that the undisputed facts do not give rise to a claim for damages. We therefore reverse the Court of Appeals and reinstate the judgment of the circuit court.


Plaintiff asserts two grounds to hold the broadcasting company liable for causing him mental anguish. One is that the publicity defendant gave to plaintiff's injuries and pain concerned plaintiff's private life and would be offensive to a reasonable person. The other is that defendant appropriated plaintiff's recorded image without his consent to its own commercial purpose.

The question whether truthfully publicizing a fact [300 Or. 457] about a private individual that the individual reasonably prefers to keep private is, without more, a tort has not yet been squarely decided by this court.

We recently had occasion, in Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985), to review Oregon cases on "privacy" since Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438 (1941). In Hinish, plaintiff's name had been signed without his consent to a telegram urging the governor to veto a bill. In Humphers, 298 Or. at 715, 696 P.2d 527, we noted:

"An essential element in Hinish was the allegation that plaintiff's name was used without his consent and against his will, in other words, that using his name on the telegram was fraudulent. The case does not hold that it would be an actionable invasion of privacy to write the governor that 'Mr. Hinish, too, opposes this bill,' if Hinish had made such a statement to the writer. The false appropriation, not the potential public exposure of Hinish's actual views, constituted the tort."

There were three "privacy" cases in 1967. Hamilton v. Crown Life Ins., 246 Or. 1, 423 P.2d 771 (1967), denied liability when an insurance agent showed potential customers his company's check to a widow whose husband was known in the community to have committed suicide. Judge Goodwin's opinion for the court, after assuming but not deciding that First Amendment constraints allow a "remnant" of tort liability for invasions of privacy, noted that the complaint alleged "no false attribution, no intrusion, and no appropriation of a commercially valuable testimonial or endorsement." 246 Or. at 4, 423 P.2d 771. The agent's disclosure of a private matter was "offensive and boorish," but the court held that "the injury is not one that would justify resort to the courts for damages." Id. at 5-6, 423 P.2d 771.

In Tollefson v. Price, 247 Or. 398, 430 P.2d 990 (1967), defendant allegedly had included Mrs. Tollefson's name in advertising

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a list of delinquent debts for sale, wrongly stating that the debt was undisputed. We observed in Humphers that the Tollefsons' complaint alleged not only that the latter statement was factually false but also that it was made with the specific purpose to harass, vex and annoy the plaintiffs, and we noted that "[d]eliberately harassing debt collection methods may be tortious without publicity or 'invasion of privacy,' " 298 Or. at 715, 696 P.2d 527, citing Turman v. Central Billing [300 Or. 458] Bureau, Inc., 279 Or. 443, 568 P.2d 1382 (1977). The third case, French v. Safeway Stores, 247 Or. 554, 430 P.2d 1021 (1967), denied recovery when a store manager's note to store employees stated that plaintiff's relatives did not trust plaintiff to do his own shopping.

In a later case, a claim that an insurance company invaded plaintiff's privacy by surreptitious surveillance and filming of evidence to defeat a compensation claim resulted in a nonsuit because the surveillance was not "unreasonable," though the court affirmed nominal damages for the investigator's technical trespass on plaintiff's land. McLain v. Boise Cascade Corp., 271 Or. 549, 533 P.2d 343 (1975). This court also refused to hold police officers liable for revealing to a newspaper, and the newspaper for publishing, the name and address of a rape victim in a police report that was a public record. Ayers v. Lee Enterprises, Inc., 277 Or. 527, 561 P.2d 998 (1977).

Finally, Humphers v. First Interstate Bank, supra, held that a physician was not liable on a theory of "invasion of privacy" for revealing information that disclosed the identity of a former patient to the daughter whom she had given up for adoption, although the mother could proceed on a theory of breach of confidence in a confidential relationship. Plaintiff's interest qualified as a "privacy" interest under Oregon statutes, but this alone did not suffice to claim damages from anyone who caused injury to that interest. Humphers, 298 Or. at 716-17, 696 P.2d 527. If the physician was liable, "it must result from an obligation of confidentiality beyond any general duty of people at large not to invade one another's privacy." Id. at 717, 696 P.2d 527.

The only decisions actually sustaining tort claims for invasion of privacy, therefore, have been Hinish and Tollefson. In each, the respective defendants' use of plaintiffs' name was false and "fraudulent" or made for an impermissible purpose. But the fact that the question of tort liability for truthful publication of "private" facts has not previously been decided does not in itself speak for one or the other answer. See Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 548, 652 P.2d 318 (1982); Hinish v. Meier & Frank Co., supra. We must place the claim in the larger legal context.

Generally, Oregon decisions have not allowed recovery for injury to a stranger's feelings as such, unless the [300 Or. 459] infliction of psychic distress was the object of defendant's conduct or the conduct violated some legal duty apart from causing the distress. See Norwest v. Presbyterian Intercommunity Hosp., supra, 293 Or. at 558-59, 652 P.2d 318, reviewing the cases. In the absence of some other duty or relationship of the defendant to plaintiff, it does not suffice for tort liability that defendant's offensive conduct is an intentional act. The conduct must be designed to...

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