                                  Illinois Official Reports

                                          Appellate Court



                  Jacobson v. CBS Broadcasting, Inc., 2014 IL App (1st) 132480



Appellate Court              AMY JACOBSON, Plaintiff-Appellant, v. CBS BROADCASTING,
Caption                      INC., Defendant-Appellee.

District & No.               First District, Sixth Division
                             Docket No. 1-13-2480

Filed                        September 30, 2014

Held                         Summary judgment was properly entered against plaintiff television
(Note: This syllabus         news reporter in her seven-count complaint against a competing
constitutes no part of the   television broadcaster, including allegations of intrusion upon
opinion of the court but     seclusion, false light, defamation of character, and intentional
has been prepared by the     infliction of emotional distress, based on the videotaping of her and
Reporter of Decisions        her young children around the backyard pool at the home of a man
for the convenience of       who was the center of a controversial news story involving the
the reader.)                 disappearance of his wife, since plaintiff was a public figure under the
                             “limited purpose” classification set forth in Gertz based on her
                             participation in the controversial news story that led to defendant’s
                             alleged defamation, but she failed to establish a triable issue that
                             defendant edited and broadcast the videotape with actual malice by
                             intentionally publishing a false report about defendant’s conduct in
                             attempting to get information related to the disappearance of the
                             man’s wife, especially when the videotaped activities were readily
                             visible from areas around the man’s property, which was subject to
                             near constant observation by law enforcement officers and the media.



Decision Under               Appeal from the Circuit Court of Cook County, No. 08-L-7331; the
Review                       Hon. Jeffrey Lawrence and the Hon. Elizabeth M. Budzinski, Judges,
                             presiding.


Judgment                     Affirmed.
     Counsel on                Kathleen Zellner and Douglas H. Johnson, both of Kathleen Zellner &
     Appeal                    Associates, P.C., of Downers Grove, for appellant.

                               Brian A. Sher and Jena M. Valdetero, both of Bryan Cave LLP, of
                               Chicago, and Lee Levine, pro hac vice, Jay Ward Brown, pro hac vice,
                               and Matthew E. Kelley, pro hac vice, all of Levine, Sullivan, Koch &
                               Schulz, LLP, of Washington, D.C., for appellee.




     Panel                     JUSTICE HOFFMAN delivered the judgment of the court, with
                               opinion.
                               Justices Hall and Rochford concurred in the judgment and opinion.




                                                 OPINION

¶1         The plaintiff, news reporter Amy Jacobson, filed suit against the defendant, CBS
       Broadcasting, Inc. (CBS), for damages arising from a videotape made of her and her two
       young children while they were swimming in the backyard pool of a high-profile source in a
       story upon which the plaintiff was reporting. The seven-count, fifth-amended complaint
       (complaint) asserted claims for intrusion upon seclusion, false light, intentional infliction of
       emotional distress, defamation of character, and tortious interference with a business
       relationship and business expectation. After two separate proceedings, the circuit court granted
       summary judgment for CBS under section 2-1005 of the Code of Civil Procedure (735 ILCS
       5/2-1005 (West 2010)), as to all seven counts, and the plaintiff now appeals, raising the
       following issues: (1) the court erred in finding her to be a public figure, and thus required to
       prove actual malice in her claims for defamation; (2) even assuming she is a public figure, she
       raised a triable issue of fact as to the existence of actual malice; (3) summary dismissal of her
       false light claim similarly was error because a triable issue of fact exists as to actual malice; (4)
       the court erred in summarily dismissing her claim for intrusion upon seclusion because she
       sufficiently demonstrated that CBS recorded private facts at a time when she had a reasonable
       expectation of privacy; and (5) the court erred in summarily dismissing her emotional distress
       and tortious interference claims as being merely derivative of her defamation claims. For the
       reasons that follow, we affirm the judgment of the circuit court.
¶2         As this case is on review from a grant of summary judgment for CBS, we recite the facts in
       a manner consistent with this procedural posture, construing the evidence most favorably to
       the plaintiff. At the time of the occurrence, the plaintiff had been employed for 11 years as a
       reporter for Chicago television station WMAQ, NBC-5. She was assigned to report on the case
       of Lisa Stebic, who, on April 30, 2007, vanished from the Plainfield home she shared with her
       husband, Craig Stebic (hereinafter Stebic house). At the time of Lisa’s disappearance, she and
       Craig were in the midst of a contentious divorce, and the ensuing disappearance became the
       focus of media attention.

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¶3       From the moment the plaintiff was assigned to the case, she developed a rapport with the
     families of both Lisa and Craig Stebic. On July 6, 2007, the plaintiff was invited to the Stebic
     house by Craig’s sister, Jill Webb, to discuss the case. While she was there, she was videotaped
     from a neighbor’s home, allegedly by Michael Puccinelli, a reporter from CBS’s local station,
     CBS-2, and his cameraman, Nathan Delack. At the time, CBS and NBC were competitors
     locked in an intense battle for ratings. Excerpts of the videotape were subsequently aired by
     CBS in the context of a news report, after which the plaintiff was terminated from NBC and
     subjected to criticism over her journalistic ethics. The plaintiff claimed that the taping and the
     broadcast violated her right to privacy, were defamatory, and caused her to be fired by NBC-5.
     In particular, she alleged that the edited version of the videotape as broadcast maliciously
     placed her in a false light and intentionally sought to portray her “as an adulteress and an
     unethical reporter.”
¶4       In her deposition, the plaintiff testified that the morning of July 6, 2007, was her day off,
     and she had planned to go swimming with her two young sons, ages two and three, at a health
     club near her home. On the way to the health club, however, she received a call from Jill
     inviting her to come to the Stebic house. Not wanting to miss out on a potential lead and a
     chance to “get the story,” the plaintiff decided to proceed with the boys to the Stebics’, which
     had a backyard swimming pool. The plaintiff arrived at the house around 11 or 11:30 a.m., at
     which point her children immediately went into the pool. The plaintiff removed her shirt and
     shorts and accompanied the boys into the water. Present at the home with the plaintiff were
     Craig Stebic, Jill, Jill’s husband Robert Webb, and the Webbs’ children, who were visiting
     from out of town. The plaintiff denied being aware at the time she arrived at the Stebics’ that
     there were any other reporters or news media in the surrounding area. However, she
     acknowledged learning that day that there were in fact other camera crews and news personnel
     present in the neighborhood, including Puccinelli and Delack. Nonetheless, the plaintiff
     testified that she never gave anyone permission to record her in any manner and that she
     believed she was in a private area when she and her boys were at the Stebic house.
¶5       That same morning, Puccinelli and Delack went to the Stebic house on assignment from
     CBS in an attempt to interview Craig Stebic regarding a large public search for Lisa that was
     scheduled for July 7. When Puccinelli knocked on the Stebics’ front door, Robert Webb
     responded and told him that no one from the family would be making any comment. Webb
     testified that, at that point, Puccinelli appeared upset and left the premises. After leaving,
     Puccinelli and Delack proceeded to the home of neighbors, Tracy Reardon and William
     Ahlstrom, who lived behind the Stebics, and with whom Puccinelli had developed a
     professional relationship during Lisa’s case. Reardon and Ahlstrom invited Puccinelli into
     their home, and from the kitchen window, Puccinelli observed what he described in his
     deposition as a social gathering in the Stebics’ backyard. According to Puccinelli’s testimony,
     he was able to recognize both the plaintiff and Craig Stebic. Puccinelli was then allowed by the
     neighbors to bring Delack into the home with his camera, at which time Delack filmed the
     footage which became the subject of this case.
¶6       After obtaining the footage, Puccinelli returned to the Stebic house and recorded the
     license plate number of a vehicle parked in front of the house. He conducted a search which
     confirmed that the vehicle belonged to the plaintiff. Puccinelli then notified CBS’s news
     director, Carol Fowler, who instructed him to transmit the videotape into the station. The



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       plaintiff testified that copies of the tape immediately made their way around the editing “bays”
       at CBS. However, CBS did not immediately air the story.
¶7         Later that afternoon, after the plaintiff left the house, she contacted her supervisor at NBC
       and informed him that she had been videotaped swimming at the Stebic house. Her supervisor
       expressed displeasure and subsequently instructed her not to report for her next scheduled shift
       on Sunday and to retain an attorney. The following Monday, July 9, 2007, a meeting was held
       between the plaintiff and her supervisors, during which the plaintiff expressed regret for her
       decision to go to the Stebic house with her children.
¶8         In the meantime, on July 9, Fowler had been informed that two local newspapers were
       aware of the plaintiff’s presence at the Stebic house the previous Friday and that executives at
       NBC were very displeased with her conduct in covering the Stebic case. Fowler stated in one
       email that CBS nonetheless would wait to air the videotape until after the newspapers broke the
       story, but that the tape was nonetheless CBS’s exclusive story and should be released by them.
       CBS then proceeded in its efforts to prepare the planned broadcast.
¶9         On the evening of July 9, both the Chicago Tribune and the Chicago Sun-Times published,
       in print and on their websites, the story of the plaintiff’s presence at the Stebic house, and
       NBC’s adverse reaction to it. The Sun-Times story, under the headline and byline “In too deep
       *** pool party with missing woman’s husband could sink Channel 5 reporter,” stated that the
       plaintiff was in trouble with her bosses for “going swimming on her day off with the estranged
       husband of a missing Plainfield woman.” The Tribune story similarly reported that the plaintiff
       had been “seen on video tape with her children at a backyard pool-side get-together,” and that
       her WMAQ superiors were evaluating whether an ethical line had been breached and if
       punishment was warranted for her actions.
¶ 10       On July 10, 2007, CBS broadcast the report in its early morning news. In its original form,
       the videotape footage had covered a time span of roughly 16 minutes and contained images of
       the plaintiff, Jill Webb, Craig Stebic, and the children, engaging in different activities at
       various times in the pool area. It depicted the plaintiff in her halter swimsuit top and a towel,
       primarily walking in and out of the sliding door of the pool area, talking on her cell phone. The
       news report, however, featured an edited version lasting approximately two minutes, portions
       of which were juxtaposed with commentary of CBS reporter, Alita Guillen.
¶ 11       In the broadcast version, which was shot from a distance and is somewhat blurry, the
       plaintiff is seen initially in her swimsuit top and towel standing inside the open sliding door of
       the backyard, talking on her cell phone. The tape then cuts to Craig, who is behind the fence in
       another area of the yard, putting a T-shirt over his bare upper body, then immediately to the
       plaintiff’s children. The tape shows an image of the front of the Stebic house, and shortly
       thereafter, another image of the plaintiff carrying items from the house through the sliding
       door. Finally, Craig Stebic is again depicted shirtless behind the fence, walking back and forth.
       The verbal broadcast consists of an introduction followed by a showing of the edited tape, after
       which Guillen consults with Michele Weldon, a journalism professor from Northwestern
       University, regarding her views on the ethics of the plaintiff’s conduct. The text of the
       broadcast is set forth as follows:
                    “DERRICK BLAKELY: This morning a Chicago television reporter is in hot water
               over her technique in pursuing a source in the disappearance of Lisa Stebic. Stebic was
               last seen by her husband Craig Stebic two months ago. He’s not talking to police, but


                                                   -4-
               appears to be spending time with a local reporter. CBS-2’s Alita Guillen has the
               exclusive pictures.
                   ALITA GUILLEN: This video shows [the plaintiff] wearing a bikini and wrapped
               in a towel at Craig Stebic’s home, the man who police say last saw his missing wife
               nearly two months ago. Also seen in this video, captured Friday, is Craig Stebic, his
               sister ***, and [the plaintiff’s] two children. We shared the video with journalism
               professor Michele Weldon.
                   MICHELLE WELDON: I mean, clearly this is a conflict of interest.
                   GUILLEN: A case, she says, of gravely crossing a journalistic line, an error in
               judgment that damages [the plaintiff’s] credibility, as well as her colleagues’.
                   WELDON: It’s going to make the audience question, and her colleagues, and her
               competitors, question, what else has she done?
                   GUILLEN: Neighbors tell CBS-2 that [the plaintiff] has been visiting Stebic’s
               home frequently since his estranged wife’s disappearance. Why she’s been there is
               unclear. Though she’s covered the story, she’s never mentioned her social relationship
               with Stebic or his family.
                   WELDON: To quote from the SPJ Code of Ethics, they say ‘Remain free of
               associations and activities that may compromise integrity or damage credibility.’
                   GUILLEN: Monday NBC-5 released this statement saying, ‘The matter is still
               under review, and that is the only comment we’ll make.’
                   WELDON: I would use this as an example to my students, this is not the right thing
               to do. This is something to avoid.
                   GUILLEN: We did try to contact [the plaintiff], but were unable to reach her.”
¶ 12       Later in the afternoon of July 10, NBC announced that it was terminating the plaintiff’s
       employment. In the days following the broadcast, there was a significant public outcry both
       regarding the videotape’s content and CBS’s conduct in airing it. Fowler admitted receiving
       many critical emails from the public expressing that CBS had acted improperly, to a point
       where she felt the need prepare a statement justifying the network’s actions. On July 11, CBS
       made the decision to release the entire unedited videotape, with the children’s identities
       concealed, in the interests of “full disclosure.”
¶ 13       There was also a large amount of public outrage directed at the plaintiff’s actions as
       presented in the videotape. Her journalistic ethics, judgment and objectivity sparked
       commentary and debate among members of the public as well as established members of the
       news media. The plaintiff acknowledged that, in the days and weeks following the release of
       the tape, she was pursued by many local and national news outlets and media personalities,
       including Matt Lauer, Larry King, Diane Sawyer and Wolf Blitzer, seeking her side of the
       story. However, perceiving that she had made an “error in judgment” and may have stepped
       “over the line” by going to the Stebics’ that day, she chose to grant interviews only to select
       local sources and figures, with which she could be given an opportunity to fully present her
       side of the story without interruption.
¶ 14       In her complaint, the plaintiff alleged the following causes of action: invasion of privacy by
       intrusion upon seclusion (count I); false light (count II); intentional infliction of emotional
       distress (count III); defamation per se (count IV); defamation per quod (count V); tortious


                                                   -5-
       interference with a business relationship (count VI), and tortious interference with a business
       expectancy (count VII).
¶ 15       CBS initially moved for partial summary judgment as to counts I, III, VI, and VII of the
       complaint. With regard to count I, CBS claimed the plaintiff failed to show that it had intruded
       upon her seclusion in making the videotape arguing that, as a matter of law: (1) the Stebics’
       backyard at the time of the taping was not “secluded”; (2) the events occurring in the Stebics’
       backyard at the time of the taping were not “private”; and (3) in making the tape, the defendant
       was engaged in an ordinary and lawful newsgathering practice that is not “highly offensive.”
       CBS sought summary judgment as to counts III, VI and VII to the extent those counts arise
       from CBS’s conduct in making the videotape.
¶ 16       The parties submitted the following evidence relating to the motion for partial summary
       judgment. The Stebic home is in a residential neighborhood, and the backyard, including the
       pool area, is enclosed by a six-foot-high wooden fence, built to comply with local building
       laws and also for privacy. There is a sliding door in the back of the home leading out to the pool
       area. According to the plaintiff, the only place from which the entire pool area is clearly visible
       is the upstairs bedroom window of the rear neighbors, Reardon and Ahlstrom. The plaintiff
       further alleges that, as the Reardon/Ahlstrom property was 68 feet or more behind the Stebic
       house, it would not be possible from that distance to identify individuals located in the Stebics’
       backyard area with the naked eye, and that a telephoto “zoom” lens would be necessary. The
       plaintiff offered the testimony of an ophthalmologist, Michael Rosenberg, that it would be
       impossible for an individual with 20/20 vision to be able to specifically identify an individual
       standing in the Stebics’ backyard when viewing from the distance of the Reardon/Ahlstrom
       yard.
¶ 17       Photographic and testimonial evidence shows that the Stebic house sits at a lower elevation
       than all of the surrounding properties and that the back of the property, between the Stebics’
       backyard and the Reardon/Ahlstrom home, adjoins a large grassy area that is accessible to the
       public. From the grassy area, the Stebics’ sliding door and portions of the area immediately in
       front of it can be seen clearly. However, two lay witnesses, who later went to the area with the
       plaintiff, gave testimony that they were unable to discern the plaintiff’s identity from that area
       or from the Reardon/Ahlstrom home. There is also a public sidewalk adjacent to the Stebic
       house, from which the back of the house is also clearly visible. Because of the lower elevation
       of the Stebic house and yard, it is possible for people traversing the sidewalk or the grassy area
       to see over the Stebics’ fence and into the pool area. Photographs show that individuals in the
       backyard can been seen from the Reardon/Ahlstrom kitchen, though not clearly identified.
¶ 18       Following arguments, the trial court granted CBS’s motion for partial summary judgment
       as to count I of the complaint. CBS also filed a motion for summary judgment as to the
       remaining counts of the complaint. With regard to the false light and defamation claims, CBS
       argued that the plaintiff is a “public figure,” and that she therefore was required to prove, by
       clear and convincing evidence, that CBS disseminated its video and news broadcast with
       actual malice, meaning purposeful or reckless disregard for the truth of its contents.
¶ 19       In support of its contention that the plaintiff is a public figure, CBS relied upon the
       following evidence, which is substantially undisputed. The plaintiff had worked for NBC for
       11 years. Long prior to the alleged defamation, the plaintiff was by her own admission a
       well-known journalist, highly regarded in the news industry as an aggressive reporter who
       broke stories others could not. She was one of the lead reporters at NBC and was typically the

                                                    -6-
       one assigned to cover the important stories. On a national level, her complaint asserted that her
       “[f]our Emmys in four years showed industry wide recognition of her talent.” The plaintiff’s
       professional agent, Todd Mussberger, characterized her as a “very prominent” individual, with
       great name recognition, being sought after by the national news media. Her professional as
       well as personal life was covered in various local media, tracking events such as the renewal of
       her contract with WMAQ, her engagement, her pregnancy and return from maternity leave, her
       thirtieth birthday party and her assignment to cover the 2002 winter Olympics. The plaintiff
       “eagerly capitalized” on her notoriety, by being a featured guest at local fundraising events,
       including sharing top billing with the governor at a gala, appearing on parade floats, and
       headlining events such as “Dancing with Chicago Celebrities.”
¶ 20       The disappearance of Lisa Stebic was described as a “huge” story, becoming the focus of
       pervasive media coverage at both the local and national levels. There were vigils and
       fundraisers in support of Lisa, as well as ongoing large public searches for her, all of which
       were the subject of nearly nightly news. A large, organized public search was scheduled for
       July 7, 2007, the morning after the plaintiff was videotaped at the Stebic house. Testimony
       established that, in the months after the disappearance, the media remained present in front of
       the Stebics’ house around the clock, and there were reporters at his door seeking interviews on
       a constant basis. There was also evidence, apparently undisputed by the plaintiff, that local
       police maintained nearly constant surveillance of the Stebic house. News reports observed
       that, on the date of Lisa’s disappearance, she was seeking his eviction from the Stebic home.
       On July 12, 2007, the police named Stebic a “person of interest” in Lisa’s disappearance.
¶ 21       The plaintiff was assigned to the Stebic case immediately after Lisa’s disappearance and
       described herself as the “owner” of the story. She testified that she conducted her investigation
       in the same manner as with all her stories; contacting and exploring potential sources, and
       cultivating relationships with some sources. She testified that it was typical for her to spend
       time with the people surrounding her stories, routinely traveling to the site of the story and
       remaining there until the matters were resolved.
¶ 22       After being assigned to the Stebic case, the plaintiff quickly developed a cordial but
       professional relationship with the families of Lisa and Craig Stebic, becoming one of the
       favorite journalists of both families. The plaintiff was frequently at the site of the Stebic home
       and interviewed Craig several times outside of his home. She also was allowed inside the home
       on at least five occasions, and she spoke with him frequently by telephone. The plaintiff
       engaged in “tireless efforts” to determine what happened to Lisa, including participating in a
       search for Lisa on her day off, and also bringing her boys to a pancake breakfast benefiting
       Lisa held by Lisa’s relatives.
¶ 23       The plaintiff alleged that she was highly respected by the local law enforcement
       authorities, and testified that she communicated with the police regarding details of the case,
       and ultimately broke most of the major stories in the case. The plaintiff also testified that,
       although, from the early days of the investigation, Stebic declined to talk to the police on the
       advice of his attorneys, he did discuss the case with her. She was the one to inform Stebic that
       he had been named a person of interest.
¶ 24       The trial court granted CBS’s motion for summary judgment, concluding that the plaintiff
       was a public figure but that she failed to meet her burden of creating a triable issue of fact that,
       in broadcasting the alleged defamatory report, CBS acted with actual malice. The court further


                                                    -7-
       found that the remaining counts of the complaint were derivative of her defamation claim,
       granting summary judgment as to those counts. The instant appeal followed.
¶ 25        The plaintiff first argues that the trial court erred in granting summary judgment as to her
       defamation claims. Summary judgment should be granted where the pleadings, depositions,
       admissions, and affidavits on file establish that there is no genuine issue of material fact and
       that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West
       2008); Farmers Automobile Insurance Ass’n v. Williams, 321 Ill. App. 3d 310, 314 (2001). In
       determining whether a genuine issue of material fact exists, we construe the evidence in the
       record strictly against the movant and liberally in favor of the opponent. Adams v. Northern
       Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review the trial court’s allowance of summary
       judgment de novo. Ioerger v. Halverson Construction Co., 232 Ill. 2d 196, 201 (2008).
¶ 26        The plaintiff argues that the court erred in finding that she was a public figure under
       defamation law, and that she was therefore required to prove that CBS acted with actual malice
       in preparing and releasing the videotape. In order to prevail on a claim for defamation, a
       plaintiff must show that the alleged defamatory expression was somehow exempt from the
       broad first amendment protection of free speech and free press. See Imperial Apparel, Ltd. v.
       Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 393-94 (2008). In general, where the allegedly
       defamed person is a private individual, she need only demonstrate that the defendant was
       negligent in its publication of the alleged defamatory falsehood. Id. Where the plaintiff is
       found to be a public figure, however, she must prove, by clear and convincing evidence, that
       the defendant acted with “actual malice” in making the defamatory expression. See Gertz v.
       Robert Welch, Inc., 418 U.S. 323 (1974); Kessler v. Zekman, 250 Ill. App. 3d 172 (1993). In
       Gertz, the Court held that the applicability of the actual malice standard turns not so much
       upon the content of the expression or its value as a matter of public interest, but instead upon
       whether the plaintiff, through his voluntary conduct, has assumed a role of “especial
       prominence in the affairs of society” so as to “invite attention and comment” upon his actions.
       Gertz, 418 U.S. at 345; Kessler, 250 Ill. App. 3d at 180. The imposition of this heightened
       burden is justified, the Court reasoned, because public individuals not only have placed
       themselves in a position inviting commentary and scrutiny, but also have significantly greater
       access to channels of effective communication, thus providing a more realistic opportunity to
       counteract false statements and rectify any damage to their reputation. Gertz, 418 U.S. at 344.
¶ 27        Gertz went on to classify two types of public figures. The first, known as a general purpose
       public figure, includes individuals who have achieved “such pervasive fame or notoriety” that
       they “become[ ] a public figure for all purposes and in all contexts.” Id. at 351. Designation in
       this category is not lightly given; it should not be premised merely upon some degree of
       participation in community or professional affairs. See id. at 352. Rather, the defamation
       defendant who claims that the plaintiff is an all purpose public figure must provide “clear
       evidence” of the plaintiff’s “general fame or notoriety in the community, and pervasive
       involvement in the affairs of society.” Id.
¶ 28        More commonly, the public-figure determination should fall into the second classification,
       that of the “limited purpose” public figure, which turns upon the nature and extent of the
       individual’s participation in the controversy that led to the defamation. Id. at 351-52.
       Specifically, where individuals “thrust themselves to the forefront of particular public
       controversies in order to influence the resolution of the issues involved,” they become public
       figures for the limited range of issues associated with those controversies. Id. at 345, 351;

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       Wayment v. Clear Channel Broadcasting, Inc., 2005 UT 25, ¶ 22, 116 P.3d 271. The question
       of whether a defamation plaintiff is a public figure is one of law and, therefore, subject to
       de novo review. See Rosenblatt v. Baer, 383 U.S. 75, 88 (1966); Kessler, 250 Ill. App. 3d at
       182.
¶ 29        We are unable to conclude that the plaintiff in this case, though indisputably a well-known
       Chicago reporter, rose to the level of a general purpose public figure under the strictures of
       Gertz. In Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), cert.
       denied, 449 U.S. 898 (1980), a case which this court has recognized as a seminal authority in
       the application of Gertz (see Kessler, 250 Ill. App. 3d at 181), the court concluded that such
       classification should be reserved only for a well-known celebrity, or an individual whose name
       has reached the status of a “ ‘household word.’ ” Waldbaum, 627 F.2d at 1294. In general,
       journalists and television reporters, even those having attained local notoriety, have not been
       held to be general purpose public figures, but rather limited purpose figures. See Wayment,
       2005 UT 25, ¶ 29 (collecting cases). A defendant seeking to classify the plaintiff as a general
       purpose figure should furnish proof of the plaintiff’s pervasive influence and name
       recognition, or evidence demonstrating that others have altered or reevaluated their conduct or
       ideas in light of the plaintiff’s actions. Id. ¶ 25. The court in Waldbaum reasoned that truly
       famous figures “ ‘may be able to transfer their recognition and influence from one field to
       another,’ ” and that “ ‘[a] person’s power to capitalize on his general fame by lending his name
       to products, candidates, and causes’ ” will indicate the broad influence he has. Wayment, 2005
       UT 25, ¶ 22 (quoting Waldbaum, 627 F.2d at 1294 n.15).
¶ 30        In this case, CBS relied upon proof that the plaintiff had won four Emmy awards in four
       years, was a well-known personality in Chicago and in local journalistic circles, and had some
       professional community involvement. Such recognition and involvement, however, falls short
       of the “pervasive fame” or broad societal influence commanded by general purpose public
       figures under Gertz and Waldbaum. In fact, as in Wayment, the facts in this case portray the
       plaintiff as an individual performing her job as a reporter, placing herself in the public eye as a
       means to attract viewers to her station. See id. ¶ 27.
¶ 31        We do find, however, that the plaintiff constituted a public figure under the second
       classification. In determining whether an individual may qualify as a limited public figure,
       Illinois has adopted the three-part test articulated in Waldbaum. See Kessler, 250 Ill. App. 3d at
       181. First, there must be a public controversy, which means an issue that is being debated
       publicly, the outcome of which impacts the general public or some portion of it in an
       appreciable way. Waldbaum, 627 F.2d at 1296. A matter of general public interest or concern
       is not sufficient. Id.; Della-Donna v. Gore Newspapers Co., 489 So. 2d 72, 77 (Fla. Dist. Ct.
       App. 1986). Second, the plaintiff must have undertaken some voluntary act seeking to
       influence the resolution of the issues involved. Waldbaum, 627 F.2d at 1297; Wayment, 2005
       UT 25, ¶ 31 n.12. And “[f]inally, the alleged defamation must have been germane to plaintiff’s
       participation in the controversy.” Kessler, 250 Ill. App. 3d at 182 (quoting Waldbaum, 627
       F.2d at 1298).
¶ 32        Here, the evidence shows that the disappearance of Lisa, and the question of Stebic’s
       involvement in it, was a matter of public controversy. Characterized by various media sources
       as a “huge” and ubiquitous story, the case was the focus of nightly news coverage, both
       nationally and locally. The plaintiff does not substantively contest CBS’s evidence that large
       segments of the public, at least locally, were following the developing investigation into Lisa’s

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       whereabouts, discussing the couple’s contentious divorce and the location and care of their
       children, and debating Craig Stebic’s character and potential designation as a suspect.
       Testimony established that, in the months following the disappearance, the media maintained a
       pervasive presence in the area of the Stebic house, with reporters “constantly” at the door
       seeking interviews. It is apparent that these issues, tying into the overriding topical question of
       domestic violence, went beyond mere public interest, and had reached the level of public
       controversy.
¶ 33       There can further be no dispute that the plaintiff inserted herself into a prominent position
       in the controversy. Already a well-known local personality and high-profile reporter, the
       plaintiff worked steadfastly to become the “owner” of the Stebic story, admittedly throwing
       herself into the case, frequenting the site of the Stebic home with a camera crew, participating
       in public vigils and searches with a camera crew, or, at times on her days off, urging the public
       to come forward with any clues shedding light on Lisa’s disappearance. She also solicited and
       achieved close professional relationships with the families of both Lisa and Craig, gaining
       unique access to the story as one of these families’ “favorite journalists.” She admittedly
       worked “tirelessly” in the ongoing efforts to find Lisa. She was highly respected by the local
       law enforcement authorities and testified that she communicated with the police regarding the
       case and ultimately broke most of the major stories in the case of Lisa’s disappearance. The
       plaintiff also testified that, although Craig Stebic had declined to speak with the police by the
       second week after the disappearance, he did discuss the case with her.
¶ 34       It was the plaintiff’s existing notoriety, combined with her access to the Stebic family and
       her tenacious aspiration to “get to the bottom” of the case, that thrust her even further into the
       public spotlight, invited scrutiny of her methods, and gave rise to the ethical predicament in
       which she found herself on July 7. See Della-Donna, 489 So. 2d 72. Further, it cannot be
       disputed that her conduct in going to the Stebics’ that day was germane to the controversy. As
       became clear soon after the reports surfaced in the Chicago Tribune and the Sun Times, the
       plaintiff’s coverage of the Stebic case created widespread public outcry and debate as to her
       journalistic ethics and judgment. Evidence in the record in the form of public correspondence
       to NBC, as well as media commentary, demonstrates that her actions affected the way the
       public perceived her reporting on the Stebic story, as well as generally. See Kessler, 250 Ill.
       App. 3d at 182. Finally, as a public figure, she could and did avail herself of effective
       communication channels to explain her side of the story, choosing from an onslaught of media
       outlets which were pursuing her, and finding the ones that would best help her to clear her
       name. See Gertz, 418 U.S. at 344. Accordingly, we conclude that CBS’s report of the
       plaintiff’s actions was of the type contemplated under the first amendment and Gertz.
¶ 35       Next, the plaintiff contends that, even if she is a public figure, she has set forth sufficient
       evidence to prove that CBS acted with “actual malice” when preparing and editing the
       videotape.
¶ 36       In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986), the Court held that in order
       to defeat a motion for summary judgment in a libel case, a public-figure plaintiff must show
       that the evidence, viewed in the light most favorable to plaintiff, is such that a reasonable jury
       might find that actual malice had been shown with “convincing clarity.” Accord Catalano v.
       Pechous, 83 Ill. 2d 146, 170 (1980). Under the actual malice standard, a defamation defendant
       escapes liability unless the plaintiff proves that the defendant published the defamatory
       falsehood either with knowledge that it was false, or with a reckless disregard of whether it was

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       false or not. Gertz, 418 U.S. at 327-28; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80
       (1964). Reckless disregard means that the defendant had a “high degree of awareness” that the
       statement was probably false (Garrison v. Louisiana, 379 U.S. 64, 74 (1964)), or
       “entertain[ed] serious doubts as to its truth.” (Internal quotation marks omitted.) Kuwik v.
       Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 24-25 (1993); accord Coghlan
       v. Beck, 2013 IL App (1st) 120891. Consistent with this standard, where a plaintiff contends
       that the defamatory expression was implied from a context, rather than stated directly, she is
       required to establish that the defendant was subjectively aware of the implied meaning, or at
       least recklessly disregarded the potential for such implication. Saenz v. Playboy Enterprises,
       Inc., 841 F.2d 1309, 1318 (7th Cir. 1988); Woods v. Evansville Press Co., 791 F.2d 480 (7th
       Cir. 1986).
¶ 37        In support of a showing of actual malice, the plaintiff alleges that, in preparing the video,
       CBS was motivated by that fact that it was trailing NBC in a bitter ratings battle and that
       Puccinelli himself harbored a competitive ill will against the plaintiff after being denied an
       interview at the Stebic home on the same morning the plaintiff was invited to the pool. The
       plaintiff’s agent Mussberger gave the following opinion as to CBS’s motives:
                    “They ran it for prurient interest….By placing [Stebic]–the juxtaposition of that
                guy and [the plaintiff] gave rise to–every television viewer that saw it had to go away
                thinking that she was carrying on with that guy while she was supposed to be covering
                a story. Impossible to come back from that.”
¶ 38        Last, she points to one line from an email from Fowler to Puccinelli following the
       occurrence, in which Fowler states, after reviewing a proposed interview obtained by
       Puccinelli on the Stebic case: “Mike–This is great. I think we need to stay on this story in a big
       way and now that [the plaintiff] is out of the way you have the best opportunity now to own it.”
¶ 39        The plaintiff also relies upon the tape itself, claiming that the editing and the images
       displayed were clearly chosen by CBS “to achieve the ultimate defamatory sexual message.”1
       In particular, she claims that, only seconds after she is shown in her swimsuit and towel, the
       camera cuts to Stebic putting on his shirt, while in the raw footage, these two events actually
       occurred minutes apart. She also notes that, while Jill appears clearly in the raw footage, she is
       left out of the final version. Finally, the plaintiff cites to evidence of public outrage following
       the broadcast, and testimony by Fowler admitting that, after viewing the videotape, the general
       public could perceive that an “illicit” or “improper” relationship was going on between the
       plaintiff and Stebic.
¶ 40        In response, CBS relies upon testimony from its employees, all central either to the airing
       of the broadcast or its preparation, uniformly denying that the broadcast was intended to
       convey or imply that the plaintiff was using sex as a means to get a story. Editor John Petrosky
       was presented with the full video footage and a copy of the broadcast script, and given

           1
            In support of her argument, the plaintiff relies heavily on an alleged holding by the trial court in the
       context of CBS’s motion to dismiss a prior version of her complaint. According to the plaintiff, the
       court concluded there that the videotape was “capable of only a defamatory meaning *** namely, that
       [the plaintiff] used ‘adultery’ and ‘seductive means’ to cultivate sources and get her stories.” (Emphasis
       in original.) This was not the statement of the trial court. In fact, the court appropriately held, for
       purposes of ruling on a motion to dismiss, that the videotape and broadcast were reasonably capable of
       a defamatory construction, not exclusively a sexual one.

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       otherwise complete discretion as to its editing. In his deposition, Petrosky denied any
       understanding that the script implied a sexual or even unprofessional relationship. Instead, he
       believed it suggested that the “manner in which [the plaintiff] conducted herself was
       unprofessional,” meaning that she was “in the backyard of a news source *** in a story
       involving a missing woman *** dressed in a bikini *** [with] her children.” Similarly,
       Guillen, who prepared the script for her broadcast, denied implying anything sexual when she
       referred to the plaintiff’s “technique in pursuing a source,” but indicated that she was simply
       questioning events as seen on the video. Finally, CBS employees denied any belief that the
       plaintiff and Stebic were engaged in a sexual relationship.
¶ 41        We agree with the trial court, that, of course, CBS cannot escape liability simply by
       claiming that it had no knowledge that the content of the video may have been false. However,
       it still remains for the plaintiff to present actual evidence, sufficient to create a genuine issue of
       material fact, that such subjective knowledge existed. She has failed in this regard.
¶ 42        First, it is well established that, the fact that the parties were engaged in a ratings battle and
       were fierce competitors is alone not enough. The defendant must be shown to have “coupled
       his rancor *** with a knowledge of the falsity of the statement complained of, or a reckless
       disregard as to its truth or falsity.” Kessler, 250 Ill. App. 3d at 190; see also Harte-Hanks
       Communications, Inc. v. Connaughton, 491 U.S. 657, 666-67 (1989) (demonstrated hostility
       toward plaintiff insufficient). Our review of the unrebutted testimony of CBS employees
       reveals no basis to conclude that, in videotaping and reporting upon the plaintiff’s presence at
       the Stebic house, CBS intended to convey that she was engaged in a sexual relationship with
       Craig Stebic.
¶ 43        Although the broadcast footage may be viewed by some as connoting a sexual relationship,
       this is certainly not the only permissible interpretation. This is especially so in light of the fact
       that the plaintiff’s children are depicted near the sliding door where she was shown. The mere
       fact that a statement is capable of one defamatory inference does not mean that that inference is
       the only one that can be drawn, nor does it mean the statement’s publisher “either intended the
       statement to contain such a defamatory implication or even knew that the readers could
       reasonably interpret the statement[ ] to contain the defamatory implication.” Saenz, 841 F.2d at
       1318 (citing Woods, 791 F.2d at 487). In fact, it can be said that the images of Craig Stebic and
       the plaintiff, who were clearly shot at different locations of the pool area, were warranted in
       order to convey the gist of the report, that the plaintiff was swimming at the pool of Craig
       Stebic. Finally, while the plaintiff takes much from the fact that Jill Webb was edited out of the
       final tape, we find this of little significance where Guillen stated in the broadcast that Webb
       was also at the home. Further, although the record contains emails reflecting disapproval of
       CBS’s coverage of the issue, it also includes testimonials to the public’s disappointment in the
       plaintiff’s manner of reporting and disillusionment with her choices as a journalist. Viewed in
       its proper context, the plaintiff’s evidence fails to create a triable issue that, when CBS edited
       and broadcast the videotape, it did so with the intent to publish a false report about the plaintiff,
       or with a reckless disregard as to the truth of the report.
¶ 44        Based upon the foregoing analysis, we also reject the plaintiff’s next contention, that she
       sufficiently demonstrated actual malice for purposes of her false light claim. See, e.g., Lane v.
       Random House, Inc., 985 F. Supp. 141, 148 (D.D.C. 1995) (actual malice for false light same
       standard as defamation).


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¶ 45        Next, the plaintiff argues that she sufficiently demonstrated that CBS intruded upon her
       seclusion, when it filmed her engaging in private activities at a time when she had a reasonable
       expectation of privacy to be free of such recording. Specifically, CBS filmed her “in her
       two-piece swimsuit, with her children, while in a private backyard.” We disagree.
¶ 46        Shortly after the trial court’s decision in this case, our supreme court expressly recognized
       a right of action in Illinois for violation of the right to privacy based upon intrusion upon
       seclusion. Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 35. The court has
       cited with approval the Restatement of Torts, which indicates that the core of this action is a
       “highly offensive prying into the physical boundaries or affairs of another person.” Lovgren v.
       Citizens First National Bank of Princeton, 126 Ill. 2d 411, 416-17 (1989). The tort does not
       depend upon the publication or publicity itself. Id. at 417; see also Lawlor, 2012 IL 112530,
       ¶ 33. The examples forming the basis for the tort include invading an individual’s home; an
       illegal search of his or her shopping bag in a store; eavesdropping by wiretapping; peering into
       the windows of a private home; and persistent and unwanted telephone calls. Lovgren, 126 Ill.
       2d at 417 (citing Prosser and Keeton on Torts § 117, at 854-55 (W. Page Keeton at al. eds., 5th
       ed. 1984)).
¶ 47        The elements required to prove intrusion upon seclusion are (1) an unauthorized intrusion
       or prying into the plaintiff’s seclusion; (2) an intrusion that is highly offensive or objectionable
       to a reasonable person; (3) that the matter upon which the intrusion occurs is private; and (4)
       the intrusion causes anguish and suffering. Johnson v. K mart Corp., 311 Ill. App. 3d 573
       (2000). The third element of the tort, requiring allegations of private facts, is the predicate for
       the other elements, and as such, if this element is not proven, this court need not reach the other
       elements. Schiller v. Mitchell, 357 Ill. App. 3d 435, 440 (2005); Busse v. Motorola, Inc., 351
       Ill. App. 3d 67, 72 (2004).
¶ 48        Our analysis in this case begins and ends with the privacy element. We conclude that (1)
       the plaintiff cannot reasonably be said to have had a legitimate expectation of privacy or
       seclusion in the Stebics’ backyard, and (2) in addition, the videotape reveals no specific act that
       could be considered private.
¶ 49        First, although the pool was surrounded by a six-foot fence, the lot lay at the bottom of an
       incline, which, according to undisputed expert testimony, made the property between three to
       five feet lower than the surrounding area. This is supported by photographs in the record, in
       which the sliding door leading into the pool area can be seen clearly over the fence from the
       Reardon/Ahlstrom ground floor. Our review of the record and the evidence substantiates the
       trial court’s finding that, given the layout of the property and the surrounding area, the
       videotape could just as easily have been shot from the public sidewalk or the grassy area
       behind the Stebics’ property, the latter of which is even closer in distance than the
       Reardon/Ahlstrom home. See Schiller, 357 Ill. App. 3d at 441.
¶ 50        The expectation of privacy was further diminished by the fact that the video was of the
       backyard of Craig Stebic, who was at that time subject to observation not only by law
       enforcement, but by the media, which the evidence showed maintained a near constant
       presence around his house. Although the plaintiff contended she was unaware of any media
       presence in the area when she arrived that morning, she admitted learning that day that there
       were, in fact, television and camera crews in the neighborhood preparing for the search the
       following day, and that Puccinelli had come to the Stebics’ door seeking an interview. Under
       all of these circumstances, it cannot reasonably be said that the plaintiff, as an experienced

                                                    - 13 -
       reporter, as well as a lead reporter on the Stebic story, expected that she would find seclusion
       on the readily visible property outside of their home.
¶ 51       The plaintiff makes much of the fact that a “zoom” lens was required to properly identify
       who she was. Assuming that a zoom lens was used here, the plaintiff fails to cite an Illinois
       case showing how this could be dispositive under the circumstances of this case. Further, her
       argument seems disingenuous given the fact that her car was parked in front of the Stebic
       house at the time the video was shot. This fact also helped CBS confirm that she was present in
       the yard.
¶ 52       Finally, there is nothing shown in the videotape that is especially private. The plaintiff is
       shot from a distance, has a towel around her waist, and is seen primarily walking around
       talking on her cell phone. Her children are briefly shown, but their images similarly aren’t
       entirely clear. Accordingly, we find no error in the dismissal of this issue on summary
       judgment.
¶ 53       Last, the plaintiff argues that the court erred in granting summary judgment on her claims
       of emotional distress and intentional interference with prospective business relations, on the
       basis that they were derivative of the already rejected defamation and invasion of privacy
       claims. She argues that those claims did not turn simply upon the content of the videotape, but
       upon CBS’s “entire process” of “filming and editing *** that video clip.”
¶ 54       In light of the fact that the plaintiff’s actions for defamation, false light, and invasion of
       privacy have been rejected, those actions can no longer serve as a basis for her claims of
       intentional infliction of emotional distress or tortious interference with a business expectation.
       See Harte-Hanks, 491 U.S. at 667 (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56
       (1988)); Imperial Apparel, 227 Ill. 2d at 402. Instead, she must plead and prove the elements of
       those torts independently of any alleged defamatory conduct by CBS or any conduct
       amounting merely to an invasion of her privacy.
¶ 55       It is difficult to pinpoint the plaintiff’s shifting theory of liability with regard to these
       claims. We agree with CBS that, before the trial court, the plaintiff alternatively argued that the
       claims are “all predicated on the editing and broadcasting of the video” (emphasis added), and
       then, after conceding that claims related to the broadcasting were merely derivative of the
       defamation action, argued that her claims are related to the “filming and editing” of the clip.
¶ 56       In any event, a review of the plaintiff’s complaint and response to the summary judgment
       motion fails to reveal exactly what actions by CBS in filming and editing are forming the basis
       of her remaining claims. If her theories are in fact related to the alleged defamatory broadcast,
       she has already conceded that they are merely derivative. To the extent she alleges that the
       filming of her “at the Stebic home, with her children, in a two piece swimsuit” was a “highly
       offensive” “intrusion” causing her emotional distress, this claim has been rejected.
¶ 57       For the foregoing reasons, we affirm the decisions of the circuit court granting summary
       judgment in favor of CBS.

¶ 58      Affirmed.




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