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News station not liable for airing footage it agreed it would not air


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lmallory

By Laura Mallory

A husband and wife sued an Oregon television station and reporter for showing the husband on a morning broadcast, despite being promised his likeness would not be aired.

Gunshots were fired in the couple’s neighborhood, with some of the bullets striking their home. Television crews arrived to report on the shootings. The husband is a sergeant for the state penitentiary. Through his work, he interacts with inmates, some of whom have been released and have threatened to kill him.

An agreement not to disclose
The husband told the reporter he was very concerned for his safety and his family’s safety and asked he not be filmed or identified in any of the news reports. If he was shown on the news in front of his house, he believed current and former inmates may discover where he lives.

The reporter assured the husband his image would not be broadcast. After the reporter agreed not to use his image, he allowed the reporter to film him on his property. That same night, the news station broadcast the story twice. Neither broadcast showed the husband. The story also aired the following morning and was recut for a different reporter. 

The recut footage showed the husband for a total of 3.4 seconds in the morning broadcast. At least 25 inmates saw the husband on television. One of the penitentiary inmates even told the husband he had enough information to find out where he lived. This resulted in the couple suing the news station and the reporter under several legal theories, including breach of contract and infliction of emotional distress. Therefore, the couple tried to keep their home address private.

Anti-SLAPP
The news station and reporter moved to strike the complaint under the Oregon anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, alleging the claims arose out of their conduct in furtherance of the exercise of their right to free speech. 

The purpose of Oregon’s anti-SLAPP statute is to permit someone who is sued over actions taken in the public arena to have a questionable case dismissed at an early stage. The statute protects conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest. A motion to strike a claim based on the anti-SLAPP statute will be granted unless the person filing the suit can demonstrate a probability he or she will prevail on the claim.

The trial court denied the motion to strike the couples’ claims and concluded the filming of the husband was not protected expression. The Court of Appeals, however, reversed. Upon an analysis of the claims and facts, the appellate court held the evidence does not support anything more than a finding that the news station and reporter acted negligently by failing to make the station employees aware of the promise they made that the husband would not be included in the broadcast. As a result, the court held the couple failed to demonstrate a probability of prevailing on their claims.



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