Can Reality Show Cast Members Sue Over Editing?

What Claims Can a Reality Show Participant Bring Over Editing in Minnesota?

A Minnesota participant unhappy with an edit can sue for publication of private facts, intrusion upon seclusion, appropriation of name or likeness, defamation, or intentional infliction of emotional distress, and can sue under a statute when intimate images air without consent. False light, the claim built for misleading portrayals, is not available.

In Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998), the Minnesota Supreme Court wrote: “we recognize the torts of intrusion upon seclusion, appropriation, and publication of private facts.” The same opinion said, “We decline to recognize the tort of false light publicity at this time.” Lake reached the court on a motion to dismiss, so it settled which claims exist, not how a participant proves them. For the reasons the court gave, see my page on false light.

Without false light, a participant who says the edit made them look like someone they are not has to fit that complaint into defamation or into one of the three privacy claims Lake recognized. Under McKee v. Laurion, 825 N.W.2d 725 (Minn. 2013), a defamation claim requires a statement communicated to someone other than the plaintiff, that is false, that tends to harm the plaintiff’s reputation, and that the recipient reasonably understands to refer to the plaintiff. Fault also matters: Maethner v. Someplace Safe, Inc., 929 N.W.2d 868 (Minn. 2019) repeats the rule that “a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false,” while under Masson, discussed below, a public figure “cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice.” The participant’s side of that dispute is covered in defamation claims over a negative reality-TV portrayal.

What Does a Participant Have to Prove for a Private-Facts Claim?

A participant must show that the production gave publicity to a matter about the participant’s private life, that the matter would be highly offensive to a reasonable person, and that it is not of legitimate concern to the public. A broadcast supplies the publicity, and the truth of the fact does not defeat the claim.

Lake adopted the Restatement formulation: liability arises when one “gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” In Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003), the court held that faxing employee Social Security numbers to 16 terminal managers was not publicity. It adopted a definition that quotes the Restatement’s example that “any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity.” Bodah also described the claim as a remedy “for the truthful but damaging dissemination of private facts, which is nonactionable under defamation rules.”

That leaves three elements the participant must still prove. The aired matter must concern “the private life of another,” must be one that “would be highly offensive to a reasonable person,” and must be one that “is not of legitimate concern to the public” in Lake’s words. Lake described the interest at stake this way: “The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.” I suggest treating any fact the participant did not disclose on camera as the higher-risk category, because Lake ties the privacy interest to the person’s own choice of what becomes public. The general rules are on my page about publication of private facts.

How Can Truthful Footage Still Support a Defamation Claim?

Truthful clips can support a defamation claim when the edit arranges them, or leaves out context, so that the program implies a false and damaging fact about a private person. A federal appeals court applying Minnesota law to a Minneapolis television report held that private plaintiffs may bring this claim, called defamation by implication.

In Toney v. WCCO Television, 85 F.3d 383 (8th Cir. 1996), a dog dealer who was not a public figure sued over a news report about dealers selling stolen dogs to research institutions. The court reversed dismissal of his implication claim and explained that “the touchstone of implied defamation claims is an artificial juxtaposition of two true statements or the material omission of facts that would render the challenged statement(s) non-defamatory.” Toney is a federal court’s reading of Minnesota law, not a Minnesota Supreme Court holding.

The Minnesota Supreme Court’s own decision, Diesen v. Hessburg, 455 N.W.2d 446 (Minn. 1990), quoted the common-law rule: “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.” The plurality opinion then held that “an allegedly false implication arising out of true statements is generally not actionable in defamation by a public official.” That limit is written for public officials, and a typical cast member is not one.

Spliced dialogue raises a related problem. Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991), was a public figure’s libel case under California law. The U.S. Supreme Court held that a deliberate alteration of a speaker’s words is not knowledge of falsity “unless the alteration results in a material change in the meaning conveyed by the statement.” The Court also observed that “an exact quotation out of context can distort meaning, although the speaker did use each reported word.” A line assembled from words recorded at different moments is an altered quotation in that sense.

Truth is a defense to the claim. McKee holds that “Truth is a complete defense to a defamation action” and that “If the statement is true in substance, minor inaccuracies of expression or detail are immaterial.” For how Minnesota courts handle the rest of a defamation case, see Minnesota defamation claims.

How Far Does a Signed Participant Release Protect the Production Company?

A participant release protects a production company only as far as its words clearly reach. The Minnesota Supreme Court strictly construes a clause that releases a party from liability, refuses to enforce one that is ambiguous in scope or that releases intentional, willful, or wanton acts, and requires the release to state its reach clearly and unequivocally.

In Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), the court wrote that a clause exonerating a party from liability “will be strictly construed against the benefited party.” It added: “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” It also weighed whether there was a disparity of bargaining power and whether the service was public or essential. In Justice v. Marvel, LLC, 979 N.W.2d 894 (Minn. 2022), a waiver of “any and all claims” did not release a play-area operator from its own negligence because it did not specifically reference the operator’s own conduct. The court added: “We are not demanding that parties use certain words to make their exculpatory clauses enforceable.”

Both cases arose from physical injuries and negligence claims, not from television releases. The rules they state are written for exculpatory clauses, in which a party gives up its own claims against another, and a participant’s release of claims is that kind of clause. I suggest a release that says plainly that it covers the company’s own negligence, because Justice held that the waiver there “does not specifically reference Marvel’s own conduct or otherwise sufficiently express that Marvel was being released from liability for its own negligence.” For how courts treat releases that reach too far, see overly broad releases.

What Do Minnesota Statutes Say About Airing Nudity or Intimate Footage?

Minnesota makes airing intimate footage without the participant’s consent to its dissemination a separate risk from the privacy torts. Under Minn. Stat. § 604.31, consent to being filmed is not a defense, and a court may award damages, a civil penalty up to $10,000, reasonable attorney fees, and an injunction.

Subdivision 1 creates the claim when “a person disseminated an image without the consent of the person depicted in the image,” the image shows a sexual act or exposed intimate parts, the person is identifiable, and “the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy.” It adds: “The fact that the individual depicted in the image consented to the creation of the image or to the voluntary private transmission of the image is not a defense to liability for a person who has disseminated the image without consent.” Subdivision 3 allows “a civil penalty awarded to the plaintiff of an amount up to $10,000” and “court costs, fees, and reasonable attorney fees.” Subdivision 5 requires the court to allow confidential filings to protect the plaintiff’s privacy.

Subdivision 6 lists exceptions. Two may be argued by a production: an image “obtained in a commercial setting for the purpose of the legal sale of goods or services, including the creation of artistic products for sale or display,” and an image that “relates to a matter of public interest and dissemination serves a lawful public purpose.” I suggest not relying on the commercial-setting exception, because the statute does not define “artistic products.”

Airing can also be a crime under Minn. Stat. § 617.261, subd. 1, when, among its other elements, “the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination,” and subdivision 2(b)(2) raises the penalty when “the actor disseminates the image with intent to profit from the dissemination.”

Filming itself also carries criminal exposure. Minn. Stat. § 609.746, subd. 1(e), makes it a gross misdemeanor to use a device to record an individual in a dwelling, a bathroom, a changing room, “an indoor shower facility,” or “any place where a reasonable person would have an expectation of privacy.” The intent required is to record the individual’s intimate parts “without the consent of the individual.” The offense is a felony when committed “against a minor under the age of 18, knowing or having reason to know that the minor is present.” The civil counterpart is intrusion upon seclusion, one of the claims Lake recognized.

When Does an Emotional Distress Claim Survive in Minnesota?

An emotional distress claim survives only on particularly egregious facts. In Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428 (Minn. 1983), the Minnesota Supreme Court required conduct that is extreme and outrageous, intentional or reckless, and causes emotional distress that is severe.

The court described outrageous conduct as conduct “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” It wrote that the tort “is sharply limited to cases involving particularly egregious facts.” Hubbard reversed a jury verdict for an employee because workplace discipline and criticism did not meet that standard and his distress was not severe enough. Hubbard also wrote: “A complainant must sustain a similarly heavy burden of production in his allegations regarding the severity of his mental distress.”

How Does Minnesota’s Anti-SLAPP Law Apply to a Lawsuit Over a Broadcast?

Minnesota’s Uniform Public Expression Protection Act lets a production company sued over a broadcast file a special motion to dismiss early, when the claim is based on speech “on a matter of public concern.” If the company prevails on the motion, the court must award its reasonable attorney fees related to the motion.

Minn. Stat. § 554.08, paragraph (b), applies the act to claims based on the “exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or the Minnesota Constitution on a matter of public concern” (paragraph (b)(3)). Paragraph (d) applies the act to a cause of action “asserted under paragraph (c), clause (3), (8), or (11),” the goods-or-services, common-law fraud, and consumer-protection exclusions, when the claim concerns a work “including audiovisual work regardless of the means of distribution, a motion picture, a television or radio program” (paragraph (d)(1)). Paragraph (c) excludes several claims, including “negligent supervision, retention, or infliction of emotional distress unless the claims involve damage to reputation.” The act does not define “matter of public concern,” so whether a cast member’s personal life on a reality program qualifies is open under the act’s text.

The motion window is short. Minn. Stat. § 554.09 reads: “Not later than 60 days after a party is served with a complaint, crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action to which sections 554.07 to 554.19 apply, or at a later time on a showing of good cause, the party may file a special motion for expedited relief to dismiss the cause of action or part of the cause of action.” I suggest checking the current text on the day you are served, because the window runs from service. The answer deadline runs separately: Minn. R. Civ. P. 12.01 provides that “Defendant shall serve an answer within 21 days after service of the summons upon that defendant unless the court directs otherwise pursuant to Rule 4.043,” and it alters that period for “a motion permitted under this rule,” so I suggest checking the current text of that rule on the same day. Once the motion is filed, § 554.10 stays other proceedings, including discovery, between the parties.

The court dismisses the claim if the act applies and “the responding party fails to establish a prima facie case as to each essential element of the cause of action,” under § 554.13. Minn. Stat. § 554.16 provides that “the court shall award court costs, reasonable attorney fees, and reasonable litigation expenses related to the motion” to a prevailing moving party. Under § 554.15, a denial can be appealed “as a matter of right,” and the section adds: “The appeal must be filed not later than 30 days after entry of the order.” I suggest checking the current text on the day the order is entered. Minn. Stat. § 554.17 requires the act to be “broadly construed.” More detail is on my page on Minnesota’s anti-SLAPP statute, and the same motion applied to a different medium is covered in when a Minnesota podcast host can be sued.

What Editing and Paperwork Practices Reduce a Production Company’s Exposure?

The practices that reduce exposure track the elements above: preserve proof of what was actually said, check sequences for false implications, screen private facts and intimate footage before airing, and use a release whose words reach the claims you expect.

1. Raw footage and transcripts. I suggest keeping the unedited footage, transcripts, and edit decision records for every aired scene, because under McKee truth is a complete defense, and raw footage is how a production proves what a participant actually said.
2. An implication review before picture lock. I suggest having someone outside the edit team watch each scene whose order or omissions could suggest a fact, because Toney treats an “artificial juxtaposition” or “material omission” as the basis of the claim even when every clip is real.
3. A private-facts screen. I suggest flagging any fact that came from outside the participant’s own on-camera statements, such as a medical, court, or family matter, because Lake’s claim turns on whether the fact is highly offensive and of legitimate public concern.
4. Separate consent for intimate footage. I suggest a written consent that covers broadcast and distribution, separate from the consent to be filmed, because § 604.31 makes consent to creation no defense to a claim over dissemination.
5. Release language that names the company’s own negligence. I suggest stating that the release covers the company’s own negligence, because Justice held that a waiver silent on the operator’s own conduct did not release it from liability for its own negligence. Schlobohm adds that a clause that purports to release intentional, willful, or wanton acts will not be enforced.

Managing Editing Claims as a Producer

A production company’s exposure for an edit comes from the facts it chose to air and the meaning its sequence conveys, even when every clip is real. Minnesota recognizes private-facts claims, a federal appeals court has read Minnesota law to allow implication-based defamation claims by private plaintiffs, statutes cover intimate footage, and when the anti-SLAPP act applies, a company that prevails on its early motion is awarded reasonable attorney fees related to the motion. For related claims, see my Minnesota business torts page. If a participant has threatened a claim over an episode, email me at [email protected] to start an intake and conflict check before you send the release, the episode, or the participant’s letter.