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Discovery Prevails in Privacy Case

12/12/2004 7:00 PM Eastern

The California Supreme Court has reaffirmed the right of Discovery Channel producers and others to cull public records for programming fodder.

A San Diego County, Calif., man had challenged Discovery Communications Inc. for identifying him in a 2001 episode of The Prosecutors: In Pursuit of Justice. The show uses court records, reenactments and attorney interviews to tell the story of past convictions.

The episode in question covered the murder for hire of a used car salesman, allegedly in retaliation for a class-action suit over commissions sought by the victim.

The son of the dealer’s owner was found to be behind the murder plot.

Dealership employee Steve Gates was sentenced to three years in prison as an accessory after the fact for the 1988 crime, and he’s the one who sued Discovery.

“Discovery went trolling for interesting cases. This was a very interesting case, but in 1988,” Gates’s attorney, Niles Sharif, said. “But at this point, the book is closed.”

Gates sued in San Diego Superior Court, for defamation and invasion of privacy. The suit failed on both counts.

But an appeal on the privacy issue made it to the state’s highest court, where Sharif sought a ruling on whether “ancient information of a criminal past” is fair game, particularly for entertainment shows.

Gates’s attorneys cited a 1971 California Supreme Court case, Briscoe v. Reader’s Digest Assn. Inc., in which justices said the rights of a felon seeking to begin a new life might trump the needs of an unfettered press.

In the latest ruling, the California court said that decision has been “fatally undermined” after subsequent legal challenges around the U.S. have found that media have a right to use information in the public record.

The opinion, written by associate justice Kathryn Mickle Werdegar and released Dec. 6, said the First Amendment overrode the privacy-invasion claim.

And the California court panel was reluctant to make public records generally available but then punish the press for using them. Such action would lead to “timidity and self-censorship.”

Sharif said the cases cited don’t address “ancient information,” and he’ll petition the U.S. Supreme Court to review Gates’s case.

He acknowledged odds are against the high court taking the case, given the volume of appeals, but not impossible. “After all, the California court takes maybe one in 900, and it heard our case.”

Should the U.S. Supreme Court decline, “the case is pretty much over,” Sharif said.

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