'Dateline' Libel Claim Revived, Privilege Lost

     DENVER (CN) - "Dateline" may have to produce its raw footage to an insurer that says a hidden-camera investigation defamed it, the 10th Circuit ruled.
     "Dateline" aired the segment in question, titled "Tricks of the Trade," in April 2008. It featured snippets from an event called "Annuity University," a two-day seminar Brokers' Choice of America Inc. (BCA) held for insurance brokers in Colorado.
     The program illustrated how some insurance agents are using scare tactics to lure seniors into buying annuities that are not right for them, and BCA claimed that the program made it owner, Tyrone Clark, look like he was one of those bad agents.
     It said Alabama police helped the "Dateline" crew illegally film the seminar using a hidden camera, and that the edited footage took Clark's words out of context.
     Police were not named as defendants in the federal complaint BCA and Clark filed against NBC Universal Inc., General Electric Co., "Dateline" reporter Chris Hansen, and producers Steven Fox Eckert and Marie Theresa Amorebieta in Colorado.
     The action alleged defamation and violations of Clark's Fourth and 14th Amendment rights.
     Claiming privilege under the Colorado Shield Law, "Dateline" did not make its raw footage of the seminar available for the case. A federal judge in turn dismissed the complaint with prejudice after finding that BCA failed to show relevant material.
     Reviving the case Wednesday, a three-judge panel with the 10th Circuit said the defamation claims are strong enough to go to trial.
     "Instead of promoting predatory tactics, BCA's complaint alleged facts supporting its position that Annuity University provides a straight-forward discussion of the pros and cons of annuity products and endorses ethical (although scary) marketing," Judge Terrence O'Brien wrote for the court (parentheses in original). "In that light, it plausibly alleges 'Dateline' selected bits and pieces of Clark's statements to project an undeserved and shocking image to the audience, leaving it with a false impression of his preservations. Whether these allegations will survive summary judgment remains to be seen. The factual basis of the complaint, however, is sufficient to state a plausible defamation claim. We reverse the District Court's dismissal of it."
     Even though there is a shield law for journalists in Colorado, "Dateline should give BCA the unedited footage because it will help determine if there was any malice on the show's part while putting together the segment," the decision continues.
     "The fact-finder is entitled to the best evidence available, particularly in a case like this, which asks whether the media's zeal to report and perhaps sensationalize should be tempered by its responsibility not to defame," O'Brien wrote.
     Declining to revive BCA's claims under the Fourth and 14th Amendments, the court found no evidence that Alabama officials took "editorial participation" in the making of the show.