Defamation Claims for Television Arrests

If you're arrested, do the cops have the automatic right to video while you're being questioned and show that video on TV?

Michael W. Flynn
October 24, 2008


First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is television libel and slander. Steve from Massachusetts wrote:

Some friends and I last night saw an episode of Cops where they purport to show real life video of people being chased and arrested. Is this legal? If you're arrested, do the cops have the automatic right to video while you're being questioned and show that video on TV? Couldn't that be considered libel or slander, especially since the people on [Cops] haven't even been accused of a crime, yet?

Thanks Steve. The short answer is that a person depicted on a television show being arrested does not likely have a good defamation case against the television station. The person might have a case for invasion of privacy, but not likely. The quick and dirty tip is simply to assume that all encounters with the police are being recorded.

To successfully win a claim for the tort of defamation, you must prove the unprivileged publication of a fact that is false and has the tendency to injure your reputation. Defamation can be in the form of slander, which is generally spoken, or libel, which is generally written. Statements that accuse a person of a crime are always deemed to be slanderous.

However, there are two main defenses to a claim of defamation. The first is the absolute defense of truth. If the statement made is true, then the suit for defamation will fail. The second is consent. If you consent to a statement being published about you, and the statement is published within the scope of that consent, then you cannot later maintain a suit for defamation.

Both defenses would apply to the broadcasters of the show Cops. Where a television show depicts a person being arrested, and that person was in fact arrested, then the depiction is true. Further, I understand that Cops places a disclaimer at the beginning of the show stating that the people depicted in the show are innocent until proven guilty in a court of law. This statement more specifically clarifies for the viewer that the person depicted did not necessarily commit the crime, but had merely been arrested for it.

As to consent, I understand that Cops often obtains release forms from the people being depicted. This release form constitutes consent, and so the person depicted has no legal recourse for defamation so long as the television station acts within the scope of the release.

Also, anyone depicted on the show whose face is blurred out is unlikely to win a defamation suit. This is because the tort of defamation also requires that a person watching the show can identify the subject.

Another related defense to defamation is newsworthiness. For example, if a suspect is driving erratically because he is drunk, and the video of the chase is later played as a news story about the dangers of driving under the influence, then the television station can invoke a defense of newsworthiness.

Steve specifically asked whether the police have the automatic right to record a video while you are being questioned and show that video on TV. This question falls under other torts that involve invasion of privacy. You can sue for invasion of privacy if the police intentionally intrude into your privacy and that intrusion would be highly offensive to a reasonable person. Whether or not your privacy has been invaded depends on whether you have a reasonable expectation of privacy. When you are confronted by the police in a public place, it is not generally considered reasonable to expect your encounter to be private. This is because police are supposed to record their encounter with you for the purposes of law enforcement. So, when you are pulled over by police, you should expect that the officers are recording the encounter. By contrast, if the police secretly recorded you in your home, and then broadcast the tape, you would more likely prevail.

[[AdMiddle]Last, a person whose face is used in a television show for commercial gain might be able to sue for misappropriation of his image.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Be sure to check out all the qdnow podcasts, such as The Mighty Mommy.

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