HIDE AND GO SUE

By GINIA BELLAFANTE

On Nov. 5, 1992, ABC's Primetime Live aired a segment charging the Food Lion supermarket chain with the kind of bad housekeeping that would cause Martha Stewart to faint. Armed with hidden cameras, PrimeTime producers posing as food handlers infiltrated several Food Lion stores to expose alleged wrongdoings, including repackaging old chicken with cosmetically enhancing barbecue sauce and falsifying expiration dates. In addition to disturbing footage, PrimeTime aired interviews with seven current and former Food Lion employees who gave firsthand accounts of the chain's unsanitary handling practices. Moreover, PrimeTime anchor Diane Sawyer noted that producers had collected similar horror stories from more than 60 other on-the-record sources. Food Lion filed suit against ABC even before the broadcast and now claims that the broadcast cost the company between $1.7 billion and $2.5 billion in lost sales and stock-price dips. But it has not filed libel charges against ABC. Rather, it has sued ABC and four PrimeTime producers for, among other things, fraud, trespass and deceptive trade practices.

On Dec. 20 a federal jury in Greensboro, North Carolina, found in Food Lion's favor. This week the jury is expected to determine just how much ABC should be punished, a decision that news organizations around the country are awaiting with trepidation. Journalists see the case as a sort of referendum on the undercover reporting tactics that have become commonplace in an era when there is a different TV newsmagazine show on almost every night of the week--not to mention all the local news shows exposing shady auto mechanics during ratings sweeps.

The verdict is so anxiety provoking for journalists because the accuracy of PrimeTime's reporting is not at issue. Although Food Lion has publicly contended that the segment was deceptive--certain footage was staged and misleadingly edited, it says--it was unable to file a libel suit before the statute of limitations expired. Instead, the company is challenging the ways in which PrimeTime obtained its information. The jury has already awarded the chain $1,402 in damages as partial payment for training costs and wages doled out to PrimeTime's faux workers. The punitive-damage award could be in the millions.

"Just the fact that Food Lion won the first round is bad enough," says Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. "Even if they ultimately come out with only 1[cent] in damages, the jury will be sending the message that even when a news organization is telling a story about public health and safety, and truth is not at issue, it's still possible for a conglomerate to win a jury verdict."

Possible now more than ever, it seems, thanks in part to a growing backlash against caught-you-in-the-act journalism. In 1994 a California jury awarded $1 million in damages to two telephone psychics who claimed that PrimeTime hidden-camera footage, including shots of private conversations that suggested they didn't believe in what they were doing, wrongly portrayed them as scammers. (ABC has appealed.) "There is a public disenchantment to a degree with exploitative journalism," notes Andrew Heyward, president of CBS News. "And some of the backlash has spilled onto legitimate investigative reports."

The best undercover journalism--from the days of Upton Sinclair's meatpacking-industry expose (he posed as a slaughterhouse employee) to a praised 1990 PrimeTime report on a VA hospital in which employees of the show posed as volunteers to reveal patient abuse--has led to sweeping change in this country. For the most part, networks and print media, which rely on undercover reporting far less frequently, claim they maintain strict standards for determining when reporters may use concealed cameras and misrepresent themselves. ABC's written guidelines dictate that the story must be about a "crime" or a "wrong--something clear and substantial that outweighs the deception involved."

But some soul-searching on the part of news organizations wouldn't hurt. A 60 Minutes report in which a producer went undercover as someone in the market for prostitutes in Thailand did little to advance the already well-documented story of child prostitution in Asia. Nor did Ed Bradley's non-undercover trip to a strip club during the same segment. If the Food Lion case makes news programs more cautious about opting for sensationalism, viewers will have an easier time distinguishing the broadcasts from airings of Hard Copy.

--Reported by Lisa H.Towle/Raleigh and William Tynan/New York

With reporting by LISA H.TOWLE/RALEIGH AND WILLIAM TYNAN/NEW YORK