Minors are always in the news. 2002 has featured stories on kidnapped children, sexual abuse by members of the clergy, foster children lost by their social workers, the dating habits of teenage pop-stars, and a seventeen year-old alleged serial sniper. Relying on children as news sources about non-controversial events is not problematic. But conducting or publishing interviews with minors about sensitive subjects, or about their own involvement in controversial events, poses legal risks not present when adults provide information. Those risks center on two primary issues: whether the minor legally can give binding consent to an interview or photograph, and whether the newsgathering process infringes on the minor's privacy rights or emotional well-being.
Who is a minor?
When publishing sensitive material derived from an apparent minor, a threshold question is whether the individual is, in fact, old enough legally to consent to an interview or a photograph. This question is a matter of state contract law. In most states, for purposes of contracting and consent, children are considered minors until they turn 18. However, in some states the minor will be able to consent to a contract if the minor is over 16 and married, or is emancipated. It is best to review the law in the state in which the child resides. As a practical matter, however, the age of the minor - emancipated or not - may influence the court in assessing the weight to be accorded to the rights, privacy interests and possibly the mental health of the child.
Moreover, in some special situations a minor may not be lawfully interviewed without the consent of his or her parent or guardian. For example, Utah law provides that "[n]o person other than a probation officer or a staff member of a detention facility shall be permitted to interview a minor 14 years of age or older in a detention facility without the consent of the minor and the minor's parent, guardian or custodian Â…" Utah Rule of Juvenile Procedure 8(d). If a reporter intends to interview a child in juvenile detention, foster care or other unusual custodial situation, one should assess whether special rules of consent apply.
A minor's capacity to execute a binding contract also arises when a publisher seeks to acquire rights to material developed by the minor. Many states recognize the general rule that an "infant" has the right to disaffirm a contract even when the contract has been entered into on behalf of the infant by a parent or guardian. E.g., New York General Obligations Law § 3-101; see, e.g.,Olshen v. Kaufman, 385 P.2d 161, 235 Or. 423 (1963). The right to disaffirm is not absolute. A person who has paid for property is entitled to return of the amounts paid, and possibly to damages. 1 Williston, CONTRACTS (rev. ed.) 765 § 238. In any event, while parental consent to an interview usually will suffice to permit a daily or monthly publication to print an interview, if one seeks or acquires a minor's rights to material for a book or motion picture, even a parent's or guardian's approval will not deprive the minor of the right to disaffirm the contract upon obtaining majority. In some circumstances, assignment of the minor's rights to a corporation controlled by the minor, approved by a parent, guardian or court, may limit the risk of voidability by the minor after attaining majority.
Publication of the identity of minors in sensitive contexts
Articles that portray an identifiable minor in a potentially unfavorable light may be actionable. Two controversial decisions, M.G., a minor v. Time Warner, Inc., 89 Cal. App. 4th 623, 107 Cal. Rptr.2d 504 (2001), petition for review denied, 2001 Cal. Lexis 6289 (Cal. Sup. Ct. 2001), and Hawkins v. Multimedia, Inc., 344 S.E.2d 145, 288 S.C. 569 (1986), illustrate how courts may react - and arguably overreact - to portrayals of identifiable minors in sensitive situations, even where the material is based on publicly available sources of information.
In Hawkins, Multimedia published a newspaper story concerning teenage pregnancies. While most of the article focused on an unmarried teenage mother, a sidebar identified the plaintiff as the teenage father of her illegitimate child. A jury awarded the plaintiff both compensatory and punitive damages for publication of intimate private facts. Multimedia on appeal argued that the "right of privacy does not prohibit the publication of matter which is of legitimate public or general interest," arguing that teenage pregnancies meet this test. The court, however, held that "[p]ublic or general interest does not mean mere curiosity, and newsworthiness is not necessarily the test. Â… Ordinarily, whether a fact is a matter of public interest is a question of fact to be decided by the jury. We see no error in submitting this issue to the jury." Hawkins, 288 S.C. at 571-72 (citations omitted); accord, Meetze v. Associated Press, 95 S.E.2d 606, 230 S.C. 330 (1956) (report of 12-year old giving birth). In other words, the minor's identity as a teenage father of an illegitimate son, accurately reported,was deemed not newsworthy as a matter of law.
More recently, the California Court of Appeal in M.G. reached a similar conclusion. There, Sports Illustrated and Real Sports, a program of HBO, each used a 1997 Little League team photograph to illustrate stories about adult coaches who sexually molested youths playing team sports. The photograph depicted Norman Watson, the team manager, who had pled guilty to molesting five children he had coached in Little League, together with the team and its coaches. Neither publication named any of the people in the photograph except Watson, and neither identified any of Watson's victims by his or her real name. The team members who had been molested asserted claims for publication of private facts; and those who had not been molested and three coaches depicted in the photograph asserted false light claims.
As to the private facts claim, Time Warner first argued that the team photograph was not private, and that disclosure of information which is public cannot support a private facts claim. As Time Warner argued, the plaintiffs had played a public sport; the photograph had been taken on a public baseball field,where anyone could have watched; it had been widely reported that Watson coached the Little League team; and Watson had admitted to molesting Little League players. In affirming the denial of a motion to strike under California's anti-SLAPP statute, the court adopted a questionable theory:
Time Warner apparently equates "private" with "secret" and urges any information not concealed has been made public. But the claim of a right of privacy is not " 'so much one of total secrecy as it is of the right to define one's circle of intimacy - to choose who shall see beneath the quotidian mask.' " Information disclosed to a few people may remain private.
In the present case, none of the previous media coverage specifically identified plaintiffs as team members. Nor, as the trial court observed, is there evidence in the record that the team photograph was ever widely circulated.
M.G., 89 Cal. App. 4th at 632-633 (citations omitted).
Time Warner also argued that the use of the photograph was protected because the material was newsworthy. In California,"lack of newsworthiness" is "an essential element of a cause of action based upon a claim that publication has given unwanted publicity to allegedly private aspects of a person's life." Id. at 635. Time Warner argued the photograph was newsworthy because "showing visually that any child who plays sports could be placed in harm's way, the team photos underscore the warnings of the experts featured in the Article and Broadcast." Id. The M.G. court rejected this contention on the ground that even if the issue - molestation of children playing team sports - was newsworthy, the team photograph was not:
State law contains many statutes prohibiting the disclosure of the identity of both minors and victims of sex crimes. Public policy favors such protection - as does the journalism profession. Plaintiffs supplied declarations from two journalism experts in which they confirm that use of the faces of the team members was not consonant with journalistic standards and practices. Plaintiffs also submitted examples of how the faces in the team photograph could have been obscured.
Furthermore, the article and the program in themselves demonstrate the team members' faces should have been concealed. Although the program showed footage of boys playing baseball, it did not show their faces but photographed them without their faces showing. In the program and the article, the victims were given pseudonyms unless they consented to using their real names.
Id. at 635-636. The court thus used the publisher's precautions as the basis for a legal requirement, again apparently without substantial authority. Plainly, the youth of the plaintiffs contributed to the unusual finding.
Other courts, however, have taken a more reasoned approach. For example, in Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989), the Florida Supreme Court held that a newspaper and its reporter could not be held liable for invasion of privacy for the publication of an article including lawfully obtained but confidential information about alleged child abuse following a child abuse trial. In Hitchner, the plaintiffs had been prosecuted for child abuse for "maliciously punishing" their daughter by scrubbing her bottom with a steel wool pad. Following entry of a directed verdict in favor of the parents, the reporter interviewed the prosecutor and was permitted to review the prosecutor's case file. That case file included additional allegations of abuse - such as the child's claim that she was "whipped" with paddles, forced to eat hot chili peppers when she lied, and that the child bore three cigarette burn marks - which the reporter included in an article about the trial. Florida law, however, provided that all "records concerning reports of child abuse or neglect" are confidential, and "shall not be disclosed." Fla. Stat. § 827.07. Thus, while the reporter lawfully obtained the information, it was confidential and should not have been provided to him by the prosecutor. The parents asserted a private facts claim.
The trial court found that the information was "private as a matter of law" because the prosecutor was required to maintain the confidentiality of the information, and that, for the same reason, the information was not a matter of public concern. Florida's Supreme Court, however, disagreed, holding that "[t]he public's right to know assumes special importance where judicial proceedings are concerned" - even though the challenged information had not been presented at the criminal trial, but had only been introduced in the case file. Hitchner, 549 So. 2d at 1378. The court emphasized the important role of the press as "the handmaiden of effective judicial administration," noting that the press "guards against miscarriage of justice by subjecting police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Id. at 1378, quoting Landmark Comm., Inc. v.Virginia, 435 U.S. 829, 839 (1978). The court concluded:
We underscore the fact that the information published by Cape was lawfully obtained; it was freely given by government officials and thus was legitimately within the public domain.
Id. at 1379.
The similarities between Hitchner and M.G. are striking - indeed, in M.G. the Little League team photograph was arguably entitled to less protection than the records at issue in Hitchner, which were made confidential by state statute.
Unlike the California court in M.G., the Florida court in Hitchner recognized the important function of the press in reporting on child abuse, the public nature of the information, and the public interest in articles addressing child abuse cases. One distinguishing factor is that M.G. involved a claim by the victims of child abuse, while Hitchner involved a claim by adults who admitted to using harsh disciplinary methods on their daughter. Plainly, the age of the M.G. plaintiffs influenced the M.G. court.
Hawkins and M.G. would not necessarily be followed in many jurisdictions. They illustrate, however, that where there is doubt as to whether the minor or the minor's parents would consent to the use of the minor's name, photograph, or other identifying information in a sensitive context, it is prudent to consider using pseudonyms or obscuring the photograph.
Newsgathering from minors
The very process of interviewing children about disturbing subjects requires special care - especially when a parent's prior consent has not been obtained. For example, in KOVR-TV, Inc. v. Superior Court, 31 Cal. App. 4th 1023, 37 Cal. Rptr.2d 431 (1995), a television reporter and cameraman knocked on the door of the plaintiff's house. The door was answered by Jennifer (age 11), Amanda (age 7) and Mandy (age 5); no parents were home. With the camera rolling, the reporter first learned that Jennifer, Amanda and Mandy knew the children next door and played with them. He then told the minors - on camera - that their neighbor had murdered her own two children before committing suicide. The reporter then solicited the reaction of the children to the death of their playmates. KOVR did not broadcast the interview.
The children sued KOVR for intentional infliction of emotional distress. KOVR argued that any imposition of liability based on the conduct disclosed in the video tape infringed upon the First Amendment freedoms of speech and press, arguing that the reporter "was simply 'relaying truthful information,' and that any sanction would be inimical to a free press." 31 Cal. App. 4th at 1032. The court gave this argument short shrift, noting:
There were no adults in the home and the minors were obviously too young either to consent to an intrusion by strangers into a private residence or to exercise any control over strangers who appeared there. It does not appear that they were given any choice as to whether their images and voices would be captured on video tape and broadcast publicly on television. The video tape reveals an uninvited, intrusive encounter by adult strangers with children of tender years not in a public place but in their home. A jury could conclude that these facts reveal an "alarming absence" of sensitivity and civility.
Id. at 1029-1030 (citations omitted).
The court concluded: "A free press is not threatened by requiring its agents to operate within the bounds of basic decency." Id. at 1032. The KOVR court found it irrelevant that the station had not broadcast the interview, since the emotional distress occurred when the children were "confronted" and videotaped by the reporter.
KOVR serves as a reminder that activity which could well be lawful when directed toward adults may be found invasive or actionable when directed toward children. A journalist can minimize such risks by obtaining the consent of the minor's parent or legal guardian, especially where the subject of the interview itself may be disturbing to the child.
Exercise caution
The bottom line is that when newsgathering involves obtaining sensitive or controversial information from minors, or reporting on the activities of minors, caution is required. Especially where the article may be distressful to, or reflect badly upon, the minor, it is appropriate to evaluate whether the identification of the minor is essential to the story.