Legal Protections for Reality TV Participants: Potential & Precedent

                As technology improved, and Reagan’s administration deregulated the film industry, more time and space could be devoted to the broadcasting of shows for television. For a while, Hollywood’s guild system tightly controlled the quantity of shows and movies produced to fill those new channels and time slots. But the splintering of viewership across more networks and a Writer’s Guild strike in 1988 incentivized production companies to seek alternatives to this arrangement. Within this slew of social and political conditions, reality TV started to take off as the cornerstone of television viewing around the globe. The greatest advantage of reality TV is the spontaneity of the show’s structure and participants, as opposed to the careful planning required for traditional, story-driven TV to function. With simple premises--such as a competition, a certain kind of life to follow, or a prank show--episodes can be churned out relatively quickly and without the high production costs associated with hiring guild writers and actors. These features have led to their omnipresence in our culture today, but the lack of legal protection for reality show participants has its downsides. (Cort)

                Reality TV producers, having saved money elsewhere, devote a significant portion of their budget to a legal team for the purpose of drafting contracts that protect them from the liabilities of casting regular people on their shows. Regular people, with no union/guild behind them, often do not have the legal resources to comprehend the nature of the contracts they are signing and what rights they may or may not have as participants on a reality show. Afflicted, a docuseries covering the lives of some who suffer from chronic illness, received legal backlash despite its release contract entailing that:

the show "may include, among other things, documentary-style or 'behind the scenes,' dramatic, humorous, embarrassing, humiliating, and satirical elements." Additionally, the show could "reveal information about [the participants] of a personal, private, intimate, surprising, disparaging, embarrassing, or unfavorable nature, which may be factual and/or fictional." The participants also acknowledged that the show could have a variety of manufactured elements. The participants confirmed that they had voluntarily agreed to participate in the show, and that they understood the risks. (Brenner 9)

This is typical of reality show contracts. Due to the voyeuristic nature of most of these shows, they ask for the ability to use exorbitant amounts of personal information and to be free to exploit participants beyond what is expected if it is deemed necessary. Of course, not every show will take advantage of what is signed over to them by participants, but they would like to be protected in the case that something to be exploited emerges as a result of the spontaneous nature of reality TV. 

The above-mentioned legal backlash emerged when a couple on the show, Jesse Bercowetz and Bekah Dinnerstein, felt that, through frankenediting, the show had misrepresented and defamed their persons and their story (Brenner 2). This became such a high-profile case that an open letter against the show was written and signed by celebrities, including Lena Dunham and Monika Lewinski (Brenner 2). Eventually, the case was brought to court: 

In Hill v. Doc Shop Productions, Inc., which will hereinafter be referred to as "the Afflicted case," the show's participants successfully negated the network and production company's defenses of consent and waiver (of their rights not to be defamed or misrepresented) due to the network fraudulently misrepresenting the type of show the participants signed up for and pressuring the consents. Because the participants were "duped," the court found their consent and waiver of claims were fraudulently obtained. Additionally, the court evaluated the reality participants' arguments for defamation and false light, finding that they at least had minimal merit (the minimum requirement to survive a SLAPP claim) (Brenner 3). 

This proves that although the odds are against them, it is possible for reality TV show participants to defend themselves against these contracts in court, given extraordinary circumstances.

One way reality show participants can protect themselves in court against malicious contracts is by bringing up cases of Intentionally Inflicted Emotional Distress, or IIED for short. IIED is defined as the following in California Causes of Action: 

A person may recover damages for intentional infliction of emotional distress if he or she suffers severe emotional injury caused by the defendant’s outrageous conduct absent any privilege with the intent to cause, or with reckless disregard of the probability of causing, emotional distress. [...] The elements of intentional infliction of emotional distress are: “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.” (§1:21)

Popular reality television programs often center around prank content that thrive  on the idea of inflicting the most emotional impact on people. The idea is that the prank is designed to appear so real, many individuals are deeply impacted by the actions made in the show. The actions are designed and intended to facilitate a response based on shock value to engage audiences. Many people are familiar with the old tagline featured on MTV’s Punk’d, “You’ve been punk’d!” Showrunners utilize hidden cameras to entrap an individual in an embarrassing action, frightful experience, or as part of a social experiment. In one case, a couple sued Ashton Kutcher, popular host of Punk’d, after finding a “corpse” in their hotel room in Las Vegas. They sued alleging IIED and more, resulting in the cancellation of Punk’d during the lawsuit. Despite this, it is often difficult to meet the standards of an IIED claim due to the conduct needing to be “outrageous” and “severe.” The format is further utilized today on accessible platforms like TikTok, Instagram, Facebook, and YouTube. Couples and families often create an entire social media presence off “harmless” prank. 

As part of a generation that grew up on MTV and prank/reality television culture, it is almost normal to accept its existence and evolution into streaming and social media platforms. Many reality TV shows are often entertaining and provide insight into “realities” that we might not otherwise get an inside view on, such as America's Sweethearts: Dallas Cowboys Cheerleaders, Love on the Spectrum, 19 Kids and Counting, and more. The legal question is, what impact does reality television have on its participants and where do legal claims such as Intentionally Inflicted Emotional Distress come into the real world? 

By Yanis Ait Kaci Azzou, Library Assistant and Andrea Valencia, Librarian. Adrea Larios Lopez contributed reporting.

Bibliography: 

1. Cort, NOTE: GET REAL: THE TENSION BETWEEN STARDOM AND JUSTICE FOR REALITY TELEVISION PARTICIPANTS, 13 N.Y.U. J. of Intell. Prop. & Ent. Law 421
2. Brenner, CHAPTER 2 EMOTIONAL DISTRESS » §2-1:00 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS » §1:20 ELEMENTS » §1:21 Outrageous Conduct
3. ARTICLE: CHANGING TIMES IN THE REAL WORLD: SEEING REALITY TELEVISION PARTICIPANTS IN A NEW LIGHT, 13 Ariz. St. Sports & Ent. L.J. 55