The SeaWorld Killer Whale Death Video and the Right to Privacy

Jessica Bennett at Newsweek brought my attention to a story about the family of the killer whale trainer (Dawn Brancheau) who was killed while training the whale at SeaWorld:

Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.

According to FoxNews:

The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under Florida law. . . .

Brancheau’s family said through a spokesman that public airing of the killing would only worsen their grief.They could seek a court injunction to stop the release, at least temporarily. The family has been consulting the lawyer who represented Dale Earnhardt’s widow in a court fight over his autopsy photos.

I believe that the Brancheau family has a good case.  They want to prevent the sad events that happened to the family of Nikki Catsouras, whose gruesome accident death photos started appearing all over the Internet.  In that case, the court held that the family could bring common law privacy claims against the police department for improperly leaking the photographs.

In this instance, the video might be required to be disclosed by public records law, so tort privacy claims would likely not be available against the government if they conflicted with state disclosure obligations or against others who disseminated the video post-disclosure (due to First Amendment protection).

Thus, the family’s redress could come in two possible forms: (1) a provision of the public record law that would not allow for the disclosure of the video; or (2) a constitutional right to information privacy challenge.

Regarding Florida public records law, the Earnhardt Family Protection Act prohibits the disclosure of autopsy photos.  It was enacted because of concerns over the distribution of autopsy photos of race car driver Dale Earnhardt, who died in a crash on the race track.

The Earnhardt Family Protection Act, Fla. Stat. ch. 406.135 (2001), provides, in part:

A photograph or video or audio recording of an autopsy held by a medical examiner is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that a surviving spouse may view and copy a photograph or video recording or listen to or copy an audio recording of the deceased spouse’s autopsy. . . .

The law doesn’t completely bar disclosure of autopsy materials — it allows them to be disclosed pursuant to a court order:

In determining good cause, the court shall consider whether such disclosure is necessary for the public evaluation of governmental performance; the seriousness of the intrusion into the family’s right to privacy and whether such disclosure is the least intrusive means available; and the availability of similar information in other public records, regardless of form.

The law was upheld against a constitutional challenge in the Florida courts.  See Campus Communications, Inc. v. Earnhardt, 821 So.2d 388 (Fla. App. 20202), review denied 848 So.2d 1153 and cert. denied, 540 U.S. 1049.

The Brancheau family has a good chance of blocking the release of the video under this law.

Second, the Brancheau family could raise a constitutional right to information privacy challenge.  The constitutional right to information privacy provides protection if a person has a privacy interest, if government officials violated that interest by disclosing personal information, and if the privacy interest isn’t outweighed by the government’s interest in disclosure.

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6 Responses

  1. Ken says:

    Question from a non-attorney (me)…

    “In this instance, the video might be required to be disclosed by public records law, …”

    I wonder whether the public records law makes a distinction between records initiated by the public agency and other records created privately, then claimed by the public agency as evidence in their investigation.

    It seems to me that this situation should be different than one where the coroner’s office (for example) has taken their own photographs of an event, or a victim, as a part of their public responsibility. If, for example, the District Attorney obtains the private financial records of an individual in the course of investigating an accusation of fraud against a third party, it seems a stretch to then make those records of the victim part of “public records” available to the general public.

  2. TJ says:

    This might just reflect my ignorance, but I don’t see how the family has a good chance under the statutory exception. The statute bars release of a autopsy “held by a medical examiner.” It already seems to stretch language quite a bit to say that being killed by a killer whale is an “autopsy”; and I can’t imagine how one would say that it is performed by a doctor.

  3. Daniel Solove says:

    TJ — Interesting, as I had just assumed that the use of the video by the Sheriff’s Office to investigate the death was similar to the use of photos and videos by a state officer conducting an autopsy. Maybe the statute doesn’t technically address the circumstances in this case.

  4. Daniel Solove says:

    Dissent — I thought about that possibility, since the state is using video supplied by SeaWorld. The materials the state uses in its investigations might become public records under Florida law. I’m not sure, as I haven’t read Florida public records law in its entirety. Could SeaWorld block the disclosure? I’m not sure. Again, it would depend upon Florida public records law.