With all that's covered in the fine print of reality TV contestants' contracts these days, it would seem that producers are bulletproof against lawsuits.
But when danger enters the equation, do those contracts really have the teeth to keep contestants quiet? Can reality shows hide negligence behind a piece of paper?
If participants are ever put in real peril, experts say, liability waivers and confidentiality agreements could be void under various whistleblower protections -- depending on the state, and the severity of the situation, of course.
But should contestants decide to try their cases in the court of public opinion, they can find themselves threatened with legal action, as a recent New York Times story about "The Biggest Loser" demonstrated.
"Confidentiality agreements aren’t put in place so producers can hurt people," said Steven Katleman, an attorney with Greenberg Traurig who has advised reality shows. "They exist to protect the architecture of shows. For example, you don't want someone to let out who the winner is."
When a reporter from the Times started contacting contestants about allegations that they were encouraged to engage in dangerous weight-loss techniques, a producer sent around a threatening email stating that anyone who talked without the show's consent faced fines of between $100,000 to $1 million. J.D. Roth, the program's co-creator said that he could not confirm any specific message from show producers, but that "emails like that go out multiple times a year."
"We're not trying to hide anything here," Roth added. "Every contestant on the show is free to talk to the press and we provide plenty of press opportunities. We just want to be sure we're always aware before they're talking to someone, so they don't reveal who won or ruin the show for viewers."
Roth points out that these agreements are standard practice among reality show productions, but they still raise a number of thorny legal issues.
To begin with, as TheWrap has previously reported, reality show contracts usually include a litany of stipulations absolving producers of responsibility for everything from public defamation to the contraction of sexually transmitted diseases. Just because something is included in a contract, however, doesn't mean that it will hold up in court.
"In drafting these releases, producers typically try to limit their liability to the greatest extent possible. However, some clauses are overreaching and arguably not enforceable," said Matthew Savare, a media and entertainment lawyer with Lowenstein Sandler PC. "For example, states generally will not enforce exculpatory provisions that attempt to shield a party from his or her own recklessness and willful misconduct. Some will not enforce clauses shielding a party from his or her gross negligence."
That's a high bar, though. Many of the unsafe measures practiced by the "Loser" contestants did not take place at the behest of the show's producers. Nobody explicitly told participants to engage in potentially life-threatening activities like dehydration in order to shed pounds.
"I'm not sure how much sympathy I have," said Rob Rader, an attorney at Mitchell Silberberg & Knupp who has counseled reality show producers in the past.
