The Court of Appeal held plaintiffs had no reasonable expectation of privacy at the accident scene itself because the scene was within the sight and hearing of members of the public. The summary judgment record, however, does not support the Court of Appeal's conclusion; instead, it reflects, at the least, the existence of triable issues as to the privacy of certain conversations at the accident scene, as in the helicopter. The videotapes (broadcast and raw footage) show the rescue did not take place "on a heavily traveled highway," as the Court of Appeal stated, but in a ditch many yards from and below the rural superhighway, which is raised somewhat at that point to bridge a nearby crossroad. From the tapes it appears unlikely the plaintiffs' extrication from their car and medical treatment at the scene could have been observed by any persons who, in the lower court' s words, "passed by" on the roadway. Even more unlikely is that any passersby on the road could have heard Ruth's conversation with Nurse Carnahan or the other rescuers. [FN 13]

[FN 13] Nor are we able to discern on the tapes any "crowd of onlookers peering down at the rescue scene," as did the Court of Appeal. In the broadcast segment, when the helicopter lands at the accident scene, the camera, from a distance, captures three or four people standing on the edge of the highway, looking in the direction of the accident scene. Whether these people are connected to the rescue effort (emergency vehicles are parked on the highway shoulder near them) or what they are able to see from their vantage point (the overturned vehicle is about 50 feet from, and well below, the highway, with a number of trees in between) is unclear. On the tape of raw footage, Cooke at one point climbs the embankment and films from the shoulder in the direction of the rescue scene. The car is not visible from that vantage point; it comes into view only as Cooke, still filming, descends the embankment.

As to those gathered at the rescue site itself, it is unclear from the record, and therefore unripe for decision on summary judgment, whether any of those present -- other than cameraman Cooke -- were mere spectators. Most were clearly law enforcement personnel, firefighters or paramedics. A few individuals shown on tape are not in uniform, but at times during Ruth and Wayne' s extrication even some of these persons are seen assisting the rescuers, for example by holding an intravenous fluids bottle. Finally, it is unclear from the tapes if anyone other than those involved was able to hear Ruth's conversation with the nurse and paramedics.

Both parties have briefed the correctness of the Court of Appeal' s assessment of the accident scene' s privacy, although defendants also contend this issue is not within the original scope of our review (Cal. Rules of Court, rule 29.3(c)). Whether or not defendants are correct that this question was not reasonably comprehended in the issues raised in the petition for review, we have found it necessary to address this point in order to state and decide fairly and accurately the legal questions inherent in the case. (Cal. Rules of Court, rule 29.2(a).)

Whether Ruth expected her conversations with Nurse Carnahan or the other rescuers to remain private and whether any such expectation was reasonable are, on the state of the record before us, questions for the jury. We note, however, that several existing legal protections for communications could support the conclusion that Ruth possessed a reasonable expectation of privacy in her conversations with Nurse Carnahan and the other rescuers. A patient's conversation with a provider of medical care in the course of treatment, including emergency treatment, carries a traditional and legally well-established expectation of privacy. (See Evid. Code, § § 990-1007 [physician-patient privilege]; Civ. Code, § § 56-56.37 [Confidentiality of Medical Information Act].) [FN 14] Moreover, California's Invasion of Privacy Act (Pen. Code, § § 630-637.6; see Ribas v. Clark (1985) 38 Cal.3d 355, 359 (Ribas)) prohibits the recording of any "confidential communication" without the consent of all parties thereto. (Pen. Code, § 632, subd. (a).)

[FN 14] We need not determine whether any violation of the Confidentiality of Medical Information Act occurred here. Mercy Air's liability for such a violation is no longer at issue, and plaintiffs did not plead any such violation by the media defendants. On remand, however, the question whether the defendants acted in concert with Mercy Air to illegally reveal confidential medical information may be relevant to plaintiffs' intrusion claim.

A confidential communication, for purposes of Penal Code section 632 (hereafter section 632), need not fall within an evidentiary privilege. Rather, the term includes "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (§ 632, subd. (c).) The Invasion of Privacy Act, as we explained in Ribas, provides legal recognition of the individual's reasonable expectation of privacy against unauthorized interception and recording of confidential conversations: "While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. (Warden v. Kahn, supra, 99 Cal.App.3d 805, 813-814.) [¶ ] . . . [S]uch secret monitoring denies the speaker an important aspect of privacy of communication -- the right to control the nature and extent of the firsthand dissemination of his statements." (Ribas, supra, 38 Cal.3d at pp. 360-361.) [FN 15]

[FN 15] Neither in Ribas nor in any other case have we had occasion to decide whether a communication may be deemed confidential under Penal Code section 632, subdivision (c) when a party reasonably expects and desires that the conversation itself will not be directly overheard by a nonparticipant, but does not reasonably expect that the contents of the communication will remain confidential to the parties. (Compare Coulter v. Bank of America, supra, 28 Cal.App.4th at p. 929 and Frio v. Superior Court, supra, 203 Cal.App.3d at pp. 1488-1490 [both holding section 632 requires only that a party to the conversation reasonably expects it to be private from recording or eavesdropping] with O' Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248 [referring to expectation the conversation would not be "divulged" to third party] and Deteresa v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460, 463-464 [reading O' Laskey v. Sortino, supra, as requiring expectation of secrecy of contents and predicting this court would adopt such interpretation of section 632].) We need not resolve that issue here, because under either interpretation of section 632, subdivision (c) triable issues exist whether Ruth had a reasonable expectation of privacy in her communications to medical personnel.

Ruth's claim, of course, does not require her to prove a statutory violation, only to prove that she had an objectively reasonable expectation of privacy in her conversations. Whether the circumstances of Ruth's extrication and helicopter rescue would reasonably have indicated to defendants, or to their agent, Cooke, that Ruth would desire and expect her communications to Carnahan and the other rescuers to be confined to them alone, and therefore not to be electronically transmitted and recorded, is a triable issue of fact in this case. As observed earlier, whether anyone present (other than Cooke) was a mere observer, uninvolved in the rescue effort, is unclear from the summary judgment record. Also unclear is who, if anyone, could overhear conversations between Ruth and Carnahan, which were transmitted by a microphone on Carnahan's person, amplified and recorded by defendants. We cannot say, as a matter of law, that Cooke should not have perceived he might be intruding on a confidential communication when he recorded a seriously injured patient' s conversations with medical personnel. [FN 16]

[FN 16] The trial court denied, on grounds of delay, plaintiffs' request to amend their complaint to allege a violation of Penal Code section 632. The Court of Appeal affirmed the ruling and, as plaintiffs did not petition for review of that decision, its merits are not before us. As the Court of Appeal observed, however, Ruth's contention Cooke illegally recorded her conversations with Carnahan is comprehended in the complaint' s claim of intrusion and the substantive law relating to that claim.

We turn to the second element of the intrusion tort, offensiveness of the intrusion. In a widely followed passage, the Miller court explained that determining offensiveness requires consideration of all the circumstances of the intrusion, including its degree and setting and the intruder' s "motives and objectives." (Miller, supra, 187 Cal.App.3d at pp. 1483-1484; cited, e.g., in Hill, supra, 7 Cal.4th at p. 26; Sacramento County Deputy Sheriffs' Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 1487; Magenis v. Fisher Broadcasting, Inc. (Or.Ct.App. 1990) 798 P.2d 1106, 1110; and People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., supra, 895 P.2d at p. 1282.) The Miller court concluded that reasonable people could regard the camera crew's conduct in filming a man' s emergency medical treatment in his home, without seeking or obtaining his or his wife' s consent, as showing "a cavalier disregard for ordinary citizens' rights of privacy" and, hence, as highly offensive. (Miller, supra, 187 Cal.App.3d at p. 1484.)

We agree with the Miller court that all the circumstances of an intrusion, including the motives or justification of the intruder, are pertinent to the offensiveness element. [FN 17] Motivation or justification becomes particularly important when the intrusion is by a member of the print or broadcast press in the pursuit of news material. Although, as will be discussed more fully later, the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669; Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245, 249 (hereafter Dietemann); Miller, supra, 187 Cal.App.3d at p. 1492), the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may - as a matter of tort law -- justify an intrusion that would otherwise be considered offensive. While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that "without some protection for seeking out the news, freedom of the press could be eviscerated." (Branzburg v. Hayes (1972) 408 U.S. 665, 681; see also Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 519-520.)

[FN 17] Among other factors, an intrusion may be deemed more offensive to the extent the intruder's behavior created a risk that the target's efforts to evade or resist the intrusion would lead to physical harm to the intruder, the target or others.

In deciding, therefore, whether a reporter's alleged intrusion into private matters (i.e., physical space, conversation or data) is "offensive" and hence actionable as an invasion of privacy, courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news. Information collecting techniques that may be highly offensive when done for socially unprotected reasons -- for purposes of harassment, blackmail or prurient curiosity, for example -- may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story. Thus, for example, "a continuous surveillance which is tortious when practiced by a creditor upon a debtor may not be tortious when practiced by media representatives in a situation where there is significant public interest [in discovery of the information sought]." (Hill, Defamation and Privacy Under the First Amendment (1976) 76 Colum. L.Rev. 1205, 1284.)

The mere fact the intruder was in pursuit of a "story" does not, however, generally justify an otherwise offensive intrusion; offensiveness depends as well on the particular method of investigation used. At one extreme, "'routine . . . reporting techniques,'" such as asking questions of people with information ("including those with confidential or restricted information") could rarely, if ever, be deemed an actionable intrusion. (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d at p. 519; accord, Wolfson v. Lewis (E.D.Pa. 1996) 924 F.Supp. 1413, 1417.) At the other extreme, violation of well-established legal areas of physical or sensory privacy -- trespass into a home or tapping a personal telephone line, for example -- could rarely, if ever, be justified by a reporter' s need to get the story. Such acts would be deemed highly offensive even if the information sought was of weighty public concern; they would also be outside any protection the Constitution provides to newsgathering. (Cohen v. Cowles Media Co., supra, 501 U.S. at p. 669; Dietemann, supra, 449 F.2d at p. 249.)

Between these extremes lie difficult cases, many involving the use of photographic and electronic recording equipment. Equipment such as hidden cameras and miniature cordless and directional microphones are powerful investigative tools for newsgathering, but may also be used in ways that severely threaten personal privacy. California tort law provides no bright line on this question; each case must be taken on its facts.

On this summary judgment record, we believe a jury could find defendants' recording of Ruth's communications to Carnahan and other rescuers, and filming in the air ambulance, to be "' highly offensive to a reasonable person.'" (Miller, supra, 187 Cal.App.3d at p. 1482, italics omitted.) With regard to the depth of the intrusion (id. at p. 1483), a reasonable jury could find highly offensive the placement of a microphone on a medical rescuer in order to intercept what would otherwise be private conversations with an injured patient. In that setting, as defendants could and should have foreseen, the patient would not know her words were being recorded and would not have occasion to ask about, and object or consent to, recording. Defendants, it could reasonably be said, took calculated advantage of the patient's "vulnerability and confusion." (Id. at p. 1484.) Arguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers.

For much the same reason, a jury could reasonably regard entering and riding in an ambulance -- whether on the ground or in the air -- with two seriously injured patients to be an egregious intrusion on a place of expected seclusion. Again, the patients, at least in this case, were hardly in a position to keep careful watch on who was riding with them, or to inquire as to everyone' s business and consent or object to their presence. A jury could reasonably believe that fundamental respect for human dignity requires the patients' anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras) of others.

Nor can we say as a matter of law that defendants' motive -- to gather usable material for a potentially newsworthy story -- necessarily privileged their intrusive conduct as a matter of common law tort liability. A reasonable jury could conclude the producers' desire to get footage that would convey the "feel" of the event -- the real sights and sounds of a difficult rescue -- did not justify either placing a microphone on Nurse Carnahan or filming inside the rescue helicopter. Although defendants' purposes could scarcely be regarded as evil or malicious (in the colloquial sense), their behavior could, even in light of their motives, be thought to show a highly offensive lack of sensitivity and respect for plaintiffs' privacy. (Miller, supra, 187 Cal.App.3d at p. 1484.) A reasonable jury could find that defendants, in placing a microphone on an emergency treatment nurse and recording her conversation with a distressed, disoriented and severely injured patient, without the patient' s knowledge or consent, acted with highly offensive disrespect for the patient's personal privacy comparable to, if not quite as extreme as, the disrespect and insensitivity demonstrated in Miller.

Turning to the question of constitutional protection for newsgathering, one finds the decisional law reflects a general rule of nonprotection: the press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws. (Cohen v. Cowles Media Co., supra, 501 U.S. at pp. 669-670; see Branzburg v. Hayes, supra, 408 U.S. at pp. 680-695 [extensive discussion, concluding press enjoys no special immunity from questioning regarding sources with information on criminal activities under investigation by grand jury]; Pell v. Procunier (1974) 417 U.S. 817, 832-835 [no special right of access to state prisoners for interviews]; Dietemann, supra, 449 F.2d at p. 249 [First Amendment is not a license for electronic intrusion; investigative journalism can be successfully practiced without secret recording]; Shevin v. Sunbeam Television Corp. (Fla. 1977) 351 So.2d 723, 725-727 [under Branzburg, Pell, and Dietemann, Florida statute prohibiting nonconsensual recording of private conversations may constitutionally be applied to news reporters].)

"It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil and criminal laws of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed." (Branzburg v. Hayes, supra, 408 U.S. at pp. 682-683.) California's intrusion tort and section 632 are both laws of general applicability. They apply to all private investigative activity, whatever its purpose and whoever the investigator, and impose no greater restrictions on the media than on anyone else. (If anything, the media enjoy some degree of favorable treatment under the California intrusion tort, as a reporter's motive to discover socially important information may reduce the offensiveness of the intrusion.) These laws serve the undisputedly substantial public interest in allowing each person to maintain an area of physical and sensory privacy in which to live. Thus, defendants enjoyed no constitutional privilege, merely by virtue of their status as members of the news media, to eavesdrop in violation of section 632 or otherwise to intrude tortiously on private places, conversations or information.

Courts have impliedly recognized that a generally applicable law might, under some circumstances, impose an "impermissible burden" on newsgathering (Miller, supra, 187 Cal.App.3d at p. 1493); such a burden might be found in a law that, as applied to the press, would result in "a significant constriction of the flow of news to the public" and thus "eviscerate[]" the freedom of the press. (Branzburg v. Hayes, supra, 408 U.S. at pp. 693, 681.) No basis exists, however, for concluding that either section 632 or the intrusion tort places such a burden on the press, either in general or under the circumstances of this case. The conduct of journalism does not depend, as a general matter, on the use of secret devices to record private conversations. (Accord, Dietemann, supra, 449 F.2d at p. 249 ["We strongly disagree . . . that hidden mechanical contrivances are 'indispensable tools' of newsgathering. Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices." ]; Shevin v. Sunbeam Television Corp., supra, 351 So.2d at p. 727 ["News gathering is an integral part of news dissemination, but hidden mechanical contrivances are not indispensable tools of news gathering."].) More specifically, nothing in the record or briefing here suggests that reporting on automobile accidents and medical rescue activities depends on secretly recording accident victims' conversations with rescue personnel or on filming inside an occupied ambulance. Thus, if any exception exists to the general rule that "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally" (Branzburg v. Hayes, supra, 408 U.S. at p. 684), such exception is inapplicable here. [FN 18]

[FN 18] Defendants urge us to hold that any damages for intrusion do not include compensation for injury resulting from the publication of material gathered through intrusion. The only intrusion case defendants cite on this point is against them. (Dietemann, supra, 449 F.2d at pp. 249-250 [allowing publication damages in intrusion case]; see generally Hill, Defamation and Privacy Under the First Amendment, supra, 76 Colum. L.Rev at pp. 1281-1286 [discussing various approaches].) We do not reach the question, as the measure of plaintiffs' damages is not before us on this appeal from summary judgment in favor of the defense.

As should be apparent from the above discussion, the constitutional protection accorded newsgathering, if any, is far narrower than the protection surrounding the publication of truthful material; consequently, the fact that a reporter may be seeking "newsworthy" material does not in itself privilege the investigatory activity. The reason for the difference is simple: the intrusion tort, unlike that for publication of private facts, does not subject the press to liability for the contents of its publications. Newsworthiness, as we stated earlier, is a complete bar to liability for publication of private facts and is evaluated with a high degree of deference to editorial judgment. The same deference is not due, however, when the issue is not the media's right to publish or broadcast what they choose, but their right to intrude into secluded areas or conversations in pursuit of publishable material. At most, the Constitution may preclude tort liability that would "place an impermissible burden on newsgatherers" (Miller, supra, 187 Cal.App.3d at p. 1493) by depriving them of their "'indispensable tools'" (Dietemann, supra, 449 F.2d at p. 249).

Defendants urge a rule more protective of press investigative activity. Specifically, they seek a holding that "when intrusion claims are brought in the context of newsgathering conduct, that conduct be deemed protected so long as (1) the information being gathered is about a matter of legitimate concern to the public and (2) the underlying conduct is lawful (i.e., was undertaken without fraud, trespass, etc.)." Neither tort law nor constitutional precedent and policy supports such a broad privilege. Miller, Dietemann, and Wolfson v. Lewis, supra, 924 F.Supp. 1413, were all cases in which the reporters and photographers were acting in pursuit of newsworthy material, but were held to have tortiously intruded on the plaintiffs' privacy because their conduct was highly offensive to a reasonable person, not because they had committed any independent crime or tort. [FN 19] (See also Baugh v. CBS, Inc. (1993) 828 F.Supp. 745, 757 [intrusion tort does not require existence of technical trespass]; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1030-1032 [no newsgathering defense to claim of intentional infliction of emotional harm for television reporter's telling small children their neighbors had been killed while filming their shocked reaction, even if reporter hoped the children's reaction would be "'newsworthy,' e.g., suitable to redeem a promise of 'film at eleven'"]; Rest.2d Torts, § 652B, illus. 1, p. 379 ["A, a woman, is sick in a hospital room with a rare disease that arouses public curiosity. B, a newspaper reporter, calls her on the telephone and asks for an interview, but she refuses to see him. B then goes to the hospital, enters A's room and over her objection takes her photograph. B has invaded A's privacy."].)