Perhaps one of the craziest political controversies in the last week has been over Donald Trump’s leaked statements obtained by the Washington Post. Trump’s graphic statements on groping women were recorded during an interview with Access Hollywood’s former host, Billy Bush. What is so spectacular about this hot mess is the question of legal concerns when it comes to disseminating audio of a privately recorded conversation. This is however not a simple matter since the outtakes may potentially cause networks to be liable under wiretapping laws.
Due to Trump’s long history of being in the spotlight, it is not surprising that his digital history has left a significant footprint on various digital records. So, what does this mean in the legal-sphere? Well, when it comes to the “eavesdropping statute,” California is a “two-party consent” state. This means both parties to a conversation must agree on being recorded, otherwise the claim can be brought down by either party. NBC’s lawyers have been focused on whether their affiliate Access Hollywood (AH) could potentially face liability for releasing this leaked audio. However, since Trump is a public figure who was wearing a microphone whilst on the AH branded bus, it could arguably be a recording taken on “set” during an on-camera interview with Bush. Thus, the strongest argument is that Trump knew or should have known that he was being taped during the course of the conversation and he therefore consented. This may be the reason for NBC’s legal department checking off on the airing of the tapes later on after the unauthorized leak published by the Washington Post.
To add fuel to the flame, this Saturday Bill Pruitt, a producer of “The Apprentice” posted a tweet stating that; “when it comes to the #trumptapes there are far worse. #justthebeginning.” Attorneys for MGM, majority owners in the show, would naturally be cautious over potential contract lawsuits they may face if they agree to release audio or visual outtakes. However, even if Pruitt wishes to expose more lewd Trump comments, another issue would be the fact that Trump himself is executive producer of the show and would most likely have as say on whether or not to release any video to the public. Furthermore, another producer, Chris Nee, recently tweeted about a known “leak fee” of “$5 mill.” As such it is unlikely that any insider of The Apprentice would risk divulging more material. However, when politics come to play, it looks like $5 million is a hefty penny a Clinton supporter such as David Brock, would be wiling to pay. This is all well and fun, except this seemingly big shot loophole, does not acknowledge the leaker’s potential liability for breach of contract, such as various tortious interferences with contractual relations, which can result in economic damages and punitive damages. This would lead to a far higher cost than the $5 million “bargain”. Furthermore, high profile news organizations are held not to be immune from a lawsuit for tortious interference under the First Amendment, so again it is unlikely that any news outlet would risk potential liability and a monstrous fine either.
For the general public, we take this Trump debacle as an example of how to stay informed and cautious in the digital era, as persons digital history lives on forever.
Credit: Jessica Wong
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