Privacy Rights in Death Photos: Catsuouras Case Decided
Last year, I wrote about a case involving a lawsuit by a family against the California Highway Patrol (CHP) for improperly disseminating the accident-scene photos of their daughter (Nikki Catsouras), who perished in a gruesome automobile accident. Two dispatchers for the CHP emailed the photos to others, and they soon began being posted on the Internet. The family began receiving harassing phone calls.
They sued the CHP for public disclosure of private facts, intentional infliction of emotional distress, and a violation of the constitutional right to information privacy. The trial court dismissed the entire complaint.
The California court of appeals recently reversed. In its opinion, it concluded, correctly in my view (both doctrinally and normatively) that “[t]he dissemination of death images can only affect the living. As cases from other jurisdictions make plain, family members have a common law privacy right in the death images of a decedent, subject to certain limitations.” They can thus proceed to trial on their tort privacy claims.
As for their constitutional right to information privacy claim, the court held that the CHP violated this right, but that the officers were immune under qualified immunity since the right was not “clearly established.”
In a Newsweek article about the case, Jessica Bennett reports:
Google still delivers 148,000 results for “Catsouras,” and there are multiple Web sites devoted solely to the awful photos. “It’s the simple things you never expect,” says Christos. “We live in fear of the pictures. And our kids will never Google their name without the risk of seeing them.”
I was interviewed for the article, and Bennett posed an interesting question: Could the Catsouras family sue the websites continuing to post the photos for invasion of privacy? Here’s an excerpt from the article:
Nevertheless, the challenge remains: what can the Catsouras family do about the remaining photos, ever present on the Web? Many of the bloggers who post such images are anonymous, and it’s impossible, on a legal level, to hold every Web host accountable for the speech of each individual user. Moreover, posting damaging pictures may be traumatic, but it’s not libelous—which means it’s hard to bring legal action. One tactic, says privacy-law expert Daniel Solove, a professor at George Washington University, would be for the family to prove in court that the photos were not obtained via public record and were not of legitimate concern to the public. Another, says Michael Fertik of Reputation Defender, would be for the CHP to copyright the images, so that anyone who posts them would be liable for infringement. But perhaps most likely, says the family’s lawyer, would be for the CHP to cooperate with the family and give them ownership of the images, which would allow them go after anybody who was posting them without permission. “It’s going to be hard to get them off the net,” says Solove, author of The Future of Reputation: Gossip, Rumor and Privacy on the Internet. “But it’s not impossible.”
An argument various online posters of the photos are likely to make is that they are protected by the First Amendment. In Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), the Supreme Court held that “[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” However, in the Catsouras case, the photos came not from any public record — they were improperly leaked. One question for the courts is how widely Cox Broadcasting should apply — to information in public records or to all information disseminated by the government, whether in an official public record or not.
In Florida Star v. B.J.F., 491 U.S. 524 (1989), the Court followed the rule set forth in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979): “[I]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” I don’t believe that the accident-scene photos rise to the level of “public significance.” These photos are just gruesome; they don’t really say anything of importance that the public needs to know.
Therefore, even if various bloggers and others who are posting the photos online received them from the CHP or from others who got them from the CHP, I don’t think they would have First Amendment strict scrutiny protection.