4.3 Trespassing and intrusion

Journalists must navigate the legal minefield of trespassing and intrusion while gathering news. These concepts involve unauthorized entry onto property and invasion of privacy, respectively. Understanding the nuances is crucial for reporters to avoid legal trouble.

Trespassing requires physical entry, while intrusion can occur without it. Both can lead to civil lawsuits and damages. Journalists should obtain permission, stay in public areas, and respect privacy to minimize legal risks in their reporting activities.

Trespassing fundamentals

• Trespassing is the unauthorized entry onto another person's property
• Trespassing can be a criminal offense, a civil wrong (tort), or both depending on the circumstances and jurisdiction
• Journalists must be aware of trespassing laws to avoid legal liability while gathering news

Criminal vs civil trespassing

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• Criminal trespassing involves entering or remaining on property without permission and is prosecuted by the government
  • Penalties can include fines and imprisonment
• Civil trespassing is a tort claim brought by the property owner seeking damages
  • Compensatory damages aim to restore the plaintiff to their position before the trespass
  • Punitive damages may be awarded to punish and deter egregious conduct

Elements of trespassing

• The defendant intentionally entered or remained on the property
• The property belonged to someone else
• The defendant did not have permission or a legal right to be on the property
• The plaintiff did not consent to the entry

Defenses to trespassing claims

• Journalists facing trespassing claims may raise defenses arguing their entry was legally justified or excused
• Common defenses include consent, implied consent, necessity, and public property considerations

Consent of property owner

• Consent is a complete defense to trespassing
• Property owner must have actually consented to the specific entry
• Consent can be revoked at any time and the journalist must then leave promptly

Implied consent

• Property owner may implicitly consent through conduct or custom
  • Leaving gate open, not posting signs
• Implied consent applies only to normal, foreseeable entries (walking to front door)
• Does not apply to intrusive entries (climbing fence, entering backyard)

Public property considerations

• Trespassing generally does not apply to public property like sidewalks, parks, government buildings
• Journalists can enter public spaces to gather news
• But portions of public property may be closed off limiting access
  • Utility rooms, private offices, secure areas

Intrusion upon seclusion

• Intrusion is invading someone's privacy by intruding into their private affairs or seclusion
• Distinct from trespassing because it does not require physical entry onto property
• Intrusion applies to private matters, not things in public view

Elements of intrusion claims

• Defendant intruded or pried into plaintiff's seclusion, solitude, or private affairs
• Intrusion would be highly offensive to a reasonable person
• Intrusion was intentional
• Plaintiff was harmed by the intrusion

Reasonable expectation of privacy

• Intrusion claims require invading privacy, not just observing public matters
• Plaintiff must have an objectively reasonable expectation of privacy
  • Private homes, hotel rooms, phone conversations
• No reasonable expectation for things in plain view or public places
  • Public sidewalks, restaurant dining areas, open offices

Trespassing vs intrusion

• Trespassing and intrusion both involve improperly entering private spaces
• But they are distinct legal claims with key differences journalists must understand

Key differences

• Trespassing requires physical entry to property, intrusion does not
• Trespassing applies to any private property, intrusion only to private matters
• Trespassing is entering without permission, intrusion is invading privacy

Overlapping considerations

• Both torts often arise in similar newsgathering situations
• Entering property often intrudes on privacy as well
• Trespassing into private spaces (home, hotel room) likely also intrudes on seclusion

Trespassing in newsgathering

• Journalists must be cautious about trespassing while reporting
• Trespass can occur in undercover reporting, accompanying officials, or emergency situations

Undercover reporting

• Journalists sometimes use subterfuge to gain access for undercover stories
  • Misrepresenting identity, using hidden cameras
• Undercover reporting can be trespassing if it involves entering private property without true consent
• Journalists should assess whether story is worth legal risk

Accompanying government officials

• Journalists may be tempted to follow police or other officials into private property
• Doing so can be trespassing if journalist lacks independent permission
• Officials' authority does not transfer to journalists

Exigent circumstances

• Trespassing may be excused in emergencies (fires, crimes, disasters)
• Necessity defense may apply if trespass was required to prevent harm
• Journalists should still use caution and retreat once emergency resolves

Damages for trespassing and intrusion

• Trespassing and intrusion subjects journalists to legal liability
• Plaintiffs may seek various remedies through civil lawsuits

Compensatory damages

• Compensatory damages seek to reimburse plaintiffs' actual losses
  • Damage to property, medical bills, lost profits
• Putting a dollar value on invasion of privacy can be challenging

Punitive damages

• Punitive damages go beyond compensation to punish defendants
• Reserved for reckless or intentionally wrongful conduct
• Can greatly exceed compensatory amounts

Injunctive relief

• Plaintiffs may seek court orders (injunctions) to halt trespassing or intrusion
• Injunctions can prohibit future newsgathering activities
• Violating an injunction can result in contempt of court charges

Avoiding trespassing and intrusion liability

• Journalists can take steps to minimize legal risks of trespassing and intrusion
• Avoiding liability is preferable to mounting a defense after a violation

Obtaining permission

• Journalists should obtain express permission before entering private property
• Get consent in writing if possible
• Make sure consent comes from someone with authority to give it

Staying in public areas

• Conduct newsgathering from public streets, sidewalks, and spaces open to the public when possible
• Do not enter private offices or dwellings without permission
• Respect "no trespassing" signs and barriers

Respecting privacy

• Avoid using intrusive newsgathering techniques like telescopic lenses or eavesdropping devices
• Do not trespass to obtain private information
• Respect people's reasonable expectations of privacy even in public places