he U.S. District Court for the District of Arizona in Lundin v. Discovery Communications ruled that a defamation suit brought by a reality television star against the network and producers of a reality show was not barred simply by virtue of an exculpatory “Assumption of Risk” provision containing a waiver of all claims. Significantly, the ruling stands for the proposition that there is no special exception for reality television or documentary programming which would bar intentional tort lawsuits. This decision could have potentially significant implications in the reality television sector, as many reality stars may now have recourse for the oft-cited “bad edit.”
The agreement at issue was entered into by Cody Lundin – an internationally recognized professional survival instructor, best-selling author, and survival and sustainability consultant for national and international news outlets – in connection with his appearance on Discovery Channel’s “Dual Survival.” Lundin served as the show’s on-camera host, wilderness survival expert, and consultant. The show features a pair of survival experts in predetermined scenarios set in challenging environments. For instance, Lundin and his co-hosts have been marooned on an island, lost in a jungle, and stranded in the desert, all with minimal survival gear.
The agreement Lundin signed contained a section titled “Assumption of Risk” which included a provision stating that Lundin was “assum[ing] any and all risks, known or unknown, associated with” his activities, and that Lundin agreed to release Discovery from all claims resulting from his activities, whether caused by negligence or otherwise.
The show was popular, but eventually Lundin clashed with his co-host Joe Teti, who Lundin alleged threatened him and other crew members. Lundin complained to Discovery about Teti’s alleged outbursts, but Lundin was eventually fired. To dramatize Lundin’s exit from the show, Discovery issued press releases and aired promotional teasers, wherein Lundin claims Discovery deliberately used selective editing of footage from the show to defame him and place him in a false light, namely by editing the footage to depict him as incompetent and mentally unstable. Lundin further claimed that Discovery initially asked him to lie by publicly stating that he left the show in favor of his survival school, and that the defamatory footage was retaliation for his refusal to do so. After the footage aired, Lundin filed suit against Discovery.
Discovery moved for summary judgment, arguing that Lundin contractually waived any right to bring an action against Discovery based on the content of the episode pursuant to the agreement’s “Assumption of Risk” provision. Discovery argued that Maryland law (which applied pursuant to the agreement) generally enforces exculpatory clauses with three exceptions – (1) contracts of adhesion; (2) transactions affecting public interests; and (3) excusing liability for intentional harms or for reckless, wanton, or gross negligence – and none of the exceptions applied in Lundin’s case. While Discovery conceded that its actions constituted “intentional harm,” it argued that reality shows and documentaries are carved out of the third exception. In support of this argument, Discovery cited, among other authorities, a case involving a plastic surgeon who appeared on VH1’s Mob Wives and was allegedly defamed after a surgery went awry and a cast member made comments on the show to the effect that she had “almost died.” Klapper v. Graziano, 970 N.Y.S.2d 355 (N.Y. Sup. Ct. Kings County. 2013), aff’d, 129 A.D.3d 674 (2d Dept. 2015). The case was dismissed based on the unambiguous contractual release of all claims by contestants, and because of the risk individuals accept in participating in reality television shows in exchange for exposure.
In denying Discovery’s motion for summary judgment, the Discovery court concluded that no special reality television exception applies when intentional torts are involved, and noted that Klapper did not win the day for Discovery because that case made clear that exculpatory clauses apply only to claims involving negligence (and in any event the plaintiff there had failed to sufficiently allege intentional misconduct). Also, the Discovery court noted that a plaintiff cannot prospectively contract to be willfully injured by another in the future, and that, as a matter of law and public policy, a party cannot waive claims based on future intentional or reckless misconduct.
While it is only one district court opinion, the implications of the Discovery decision in the reality television context leave considerable uncertainty, particularly if other district courts or courts of appeal adopt the same reasoning. A hallmark of reality television, particularly competition shows, is the larger-than-life personalities of the contestants, the controversies between and among contestants, and creative editing aimed at maximizing drama. The Discovery decision could set a trend that may limit the creative license given to producers, and potentially clog dockets with claims by reality stars who are unhappy with how they are portrayed onscreen. Practitioners should make sure to school their clients in the reality television space, whether networks, producers, writers, or editors, on what constitutes an “intentional harm” in the editing context, how best to strike a balance between creative license and potential tort, and the possibility of using other contractual tools to limit exposure such as choice of law and venue provisions and ADR clauses.