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A california couple who learned of their son’s death when telephoned by Los Angeles police have been given a second chance to prove that a television broadcast of that phone call and their grief-stricken reaction to it was an invasion of their privacy. California’s 2d District Court of Appeal on Nov. 18 ruled that Robert and Marietta Marich were entitled to a retrial of their case against Metro-Goldwyn Mayer and MGM/UA Telecommunications-distributors of LAPD: Life on the Beat-because the trial court gave an erroneous jury instruction. Marich v. MGM/UA Telecommunications Inc., No. B154688. On a June night in 1996, a television crew employed by the now-bankrupt QRZ Media Inc. rode with the officers while filming a Life on the Beat segment. They responded to a call where the Mariches’ son, Michael, was found dead of an apparent drug overdose. While at Michael’s apartment, the crew filmed police calling Robert and Marietta to tell them of their son’s death. The call was later broadcast on an episode titled The Final Act. The Mariches sued QRZ, MGM/UA and MGM, alleging common law and statutory invasion of privacy in violation of the California penal code. A trial court dismissed the suit under the state’s anti-SLAPP (strategic lawsuits against public participation) statute-which is intended to provide expedited relief from suits believed to squelch free speech-but California’s 2d District Court of Appeal reversed, sending the case to trial. With the jury deadlocked, the parties agreed to accept an 8-4 verdict, which yielded a verdict for the defense. The Mariches then appealed, arguing that the trial court erred in instructing the jury on the definition of “intent,” returning the case to the 2d District. Both statutory invasion of privacy and its common law counterpart require proof of intentional conduct-conduct that is substantially certain to produce an expected result. The issue was whether the crew intended for the Mariches’ end of the conversation to be recorded, in violation of the law. At trial, QRZ soundman Jeffrey Leeman testified that he knew his equipment could pick up the Mariches’ end of the call, but thought that the editors would edit it out. When it instructed the jury, the trial court added to the charge a burden that the plaintiffs prove that the privacy invasion was not a mistake. Reversing, the appeals court said that the issue was not whether Leeman intended for the conversation to be broadcast, but whether he intended to record it. The law is violated “the moment a confidential communication is recorded without consent, regardless of whether it is subsequently disclosed,” the court said.

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