“Undercover report” from TomorrowWorld borderline illegal, completely unethical

Daniel*** wasn’t surprised to see two older men walk up to his TomorrowWorld tent with a handheld video camera.

Many festival-goers had GoPro cameras on hand, and plenty of older fans of the 90s rave era came to experience the festival.

What did surprise Daniel was seeing his face splashed across the nightly news of Georgia’s largest city as news anchors decried near-epidemic levels of drug use at TomorrowWorld.

Atlanta news station 11Alive sent two “undercover reporters” into TomorrowWorld, accompanied with only a small, handheld camera and two Full-Madness passes. The duo, reporters Ross McLaughlin and Shawn Hoder, recorded dozens of festival-goers without permission in an effort to capture illegal drug sales, sparking outrage on social media and debate about privacy and defamation law.

Daniel was shocked when he saw himself drunkenly reclining under his canopy tent, beer in hand, talking frankly to a man off camera about psychedelics his friends had smuggled into the festival.

He said the older men he spoke with never told him that they were reporters and never even mentioned that the camera they held was filming. They only identified themselves as Atlanta natives.

“They certainly never said anything about using (our conversation) for a local news station,” Daniel said. “I know they didn’t ask for permission.”

He spoke with the reporters frankly about his friend’s shrooms and acid, although Daniel said he never touched any of the substances.

“I was the only one in my group who wasn’t taking any drugs,” he said. “I’ll take a hair (drug) test if it comes down to it.”

He said he feels Ross McLaughlin and Shawn Hoder took advantage of his liquored state to stage an interview that misrepresented him as a drugged-out LSD peddler.

Daniel is seriously considering legal action, and he is not alone.

Not only could 11Alive face civil lawsuits over its story, but criminal charges could be levied against the the station as well.

According to Georgia law (statute 16-11-62(1)),

It is illegal to use any device “to observe, photograph, or record the activities of another which occur in any private place and out of public view” without permission.

In English: anyone who doesn’t get the permission to film someone doing something in a private place – but does it anyway – is breaking the law.

(The definition of “device” under Georgia law means any recording device, and specifically names video cameras as one such device that could be subjected to this law.)

However, University of Florida media law Professor Lyrissa Lidsky said Georgia’s privacy law unusually ambiguous, mainly because there is no real definition of what a “private place” is. (Most other states say that a person must have a “reasonable expectation to privacy”, which seems to be more difficult to prove.)

She said Daniel has the better chance of winning a lawsuit against the station than the other featured festival-goers, mainly because the “reporters” approached him while he was sitting under his canopy tent on his selected campsite. Plus, the farm is privately owned, and Daniel never gave permission for the “reporters” to use any footage of his likeness.

“If you analogize that to (recording someone for a local broadcast) in his home,” Lidsky said, “it makes it more likely that would be treated like an eavesdropping case.”

This offense would be a criminal offense.

If convicted, the station could be guilty of a felony, which would be punished by imprisonment for 1 to 5 years or a fine of up to $10,000 or both.

While Daniel said he wasn’t surprised that the reporting techniques used were either borderline illegal or completely illegal, he said he wants to make sure that his reputation won’t be harmed as a result of the story.

He has emailed the station and asked for a retraction, but did not receive a reply before this article was posted.

One civil suit Daniel is considering is known as casting him in a “false light”.

According to Georgia law, the person suing must show that the media publicly showed that person doing something he or she is not. (For instance, making it appear that someone has taken or possesses illegal drugs)

The person who is suing must also prove that the “false light” they were cast in was highly offensive to your regular, every day person.

“They cut out the beginning of the conversation so the first thing you hear me say is “a little bit of shrooms and a little bit of acid,'” Daniel said. “It made it seem like I had taken one of those drugs that day.”

But Lidsky with the University of Florida said it would be difficult to recoup any money from 11Alive, especially because the station never specifically said that Daniel took an illegal drug.

“There’s a distinction between whether you could sue and whether you could win,” Lidsky said. “But the more deception (reporters) have about who they are and their motives, the more likely they’ll get in trouble.”

Even if the station wins any potential lawsuits, some media professionals hope scrutiny of 11Alive’s story will help prevent similar, shady reporting tactics in the future.

Mike Foley, former Editor-in-Chief of the Tampa Bay Times and senior lecturer at the University of Florida’s College of Journalism and Communications, said 11Alive’s report was little more than a stunt made in bad taste.

“It’s not fair, it’s not right and it gives journalists a bad name,” Foley said.

He was especially surprised by the specific techniques employed by the two undercover reporters.

“They shot from an ambush,” Foley said. “I don’t know what the story does. Does it prove kids at music festival do drugs? That’s not news.”

The Society of Professional Journalists echoes that sentiment in its Code of Ethics, which is used as a guide for journalists across the United States.

Several of the guidelines seem to contradict the practices used by 11Alive’s Ross McLaughlin and Shawn Hoder. Some of those include:

• Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story
• Examine their own cultural values and avoid imposing those values on others.
• Avoid stereotyping by race, gender, age, religion, ethnicity, geography, sexual orientation, disability, physical appearance or social status.
• Show compassion for those who may be affected adversely by news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.
• Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
• Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.

Foley said this sort of common decency led him and his editorial staff to forbid the Tampa Bay Times’ reporters from going undercover for stories.

“If you’re going to lie about how you get information, then why would the public trust anything you have to say?” Foley said. “You get a better story if you don’t pose as something you’re not.”

*** Daniel’s name was changed to protect his identity and to prevent any further damage to his reputation

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