The 1999 case Food Lion v. ABC focuses on the undercover reporting aspect of privacy. Undercover reporting can be a powerful tool, but it should be used with caution and only as a last resort tactic. According to the Columbia Journalism Review, “Overreliance on sting operations and subterfuge can weaken the public’s trust in the media and compromise journalists’ claim to be truth-tellers.” Only after all other means to get the information are exhausted should a journalist move to undercover tactics.

The case: Reporters from ABC’s Primetime Live submitted false resumes so that they could be hired in Food Lion’s meat department. They wanted to assess how Food Lion handles their meat. They found a lot of unsanitary practices and used hidden cameras to captures some things. It was an act of deception. So the ethics are bad, but what they uncovered was beneficial to the public.

Problems: The journalists could have found other means to get what they wanted, and they should have used those other means first. Journalists should not use deception/undercover reporting unless that is the only way to get the information and if all other ways have been exhausted.

Judge’s opinion from Food Lion v. ABC (1995)

• Food Lion sued ABC in July 1995 in federal court in North Carolina, alleging fraud, breach of the duty of loyalty, trespass and unfair trade practices under North Carolina law. Food Lion claimed that ABC used illegal newsgathering methods.
• In December 1996, a jury found ABC liable for fraud, trespass and disloyalty.
• The jury awarded Food Lion $1,400 in compensatory damages and $5.5 million in punitive damages for fraud.  Additionally, the jury awarded $2 in nominal damages for breach of loyalty and trespass
• The U.S. District Court found the punitive award excessive and reduced it to $315,000.

Opinion from U.S. Court of Appeals, Fourth Circuit (1999)

• Both ABC and Food Lion appealed the judgement to the U.S. Court of Appeals in Richmond, Virginia.
• The Fourth Circuit rejected the fraud claim and the almost $317,000 in damages, but upheld the $2 award for breach of loyalty and trespass.
• The Fourth Circuit rejected the fraud damages because it found that the grocery chain failed to prove it suffered any injury as a result of its reliance on the misrepresentations the producers made on their job applications
• The judges concluded that the ABC producers trespassed. The journalists had permission to be in the stores because they were hired by Food Lion, but they were not given permission to secretly videotape in non-public areas of the stores for ABC’s use, because the stores did not consent to that.

Audio/Visual Links:

• ABC’s coverage of Food Lion’s meat handling process
• C-SPAN segment where guests discuss investigative reporting and ABC’s undercover reporting on Food Lion

Other Helpful Articles:

• “Food (Lion) For Thought: Does The Media Deserve Special Protection Against Punitive Damage Awards When It Commits Newsgathering Torts?”
• “Trash Tort or Trash TV?: Food Lion, Inc. v. ABC, Inc., and Tort Liability of the Media For Newsgathering”
• “ABC and Food Lion: The Ethics Questions”
• “Revisiting the Food Lion Case” [OPINION]
• “Undercover Reporting: Legal and Scholarly Analysis and Commentary”
• “Reporters Committee: Putting Food Lion in Perspective”