On Web, families of victims entitled to privacy

March 2, 2010

This op-ed appeared February 23 in the St. Petersburg Times.

By: Jon Mills
Jon L. Mills is dean emeritus, professor and director of the Center for Governmental Responsibility at the University of Florida’s Levin College of Law. He is the author of Privacy: The Lost Right, published by Oxford University Press.

Recently, several employees of a Florida hospital came under investigation for allegedly snapping and possibly e-mailing pictures of the ravaged body of Stephen Schafer, the Stuart kiteboard surfer who was fatally attacked by sharks on Feb. 3.

If they did, they may be in huge trouble.

That’s because, late last month, a California appeals court — quietly and with little fanfare — set the stage for far more severe consequences for overtly intrusive Internet postings.

That case involved nine gruesome images of 18-year-old Nicole Catsouras, who died instantly on Halloween Day in 2006 when she crashed her father’s Porsche into an Orange County, Calif., toll booth at 100 miles per hour. In the images, Nicole’s mangled, nearly decapitated body is still belted into the crumpled wreckage. We can barely imagine the depth of grief Nicole’s death caused her parents. To protect them from further emotional trauma, the coroner did not allow them to view her remains.

Imagine their agony when they saw all the details anyway — after photos of the crash scene began circulating on the Internet.

Nicole’s parents were outraged to learn that California Highway Patrol Officers Thomas O’Donnell and Aaron Reich copied the images of their daughter’s body from CHP’s computer file of the investigation and e-mailed them to their families and friends “for shock value.” More than 2,500 Web sites posted the gruesome images, and Nicole’s parents were subjected to a storm of abusive e-mails and text messages containing the crash-scene images.

The Catsouras family sued the California Highway Patrol and the individual officers, saying the CHP’s e-mailing of the photos violated their privacy. Though the Superior Court of Orange County judge called O’Donnell and Reich’s conduct “totally reprehensible,” the court dismissed the lawsuit on grounds that privacy laws protect only the living and Nicole’s right to privacy ended with her life.

The Jan. 29 California Court of Appeal ruling set that dismissal on its ear.

The appeals court stated, “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.”

Additionally, the court reversed the lower court’s dismissal of the Catsouras’ claim of negligence, concluding “the CHP and its officers owed plaintiffs a duty of care not to place decedent’s death images on the Internet for the purposes of vulgar spectacle.”

The reversal opinion is significant in part because it is one of the first to make possible major financial liability for publication of photos on the Internet. The Catsouras family can proceed with its action against CHP Officers O’Donnell and Reich, potentially holding them personally and financially liable for their misdeeds.

But the court also paved new ground in recognizing that the issue is not about freedom of speech. There is no First Amendment protection to distribute photos like these, so devastating to loved ones, when taken by government employees for the purposes of an investigation — people who have a legal duty to keep them confidential.

This ruling is similar to that of a Florida court ruling in the early 1990s, before the prevalence of the Internet, which prevented public distribution of the crime scene and autopsy photos of five students murdered by serial killer Danny Rolling. I served as counsel for the students’ families, who were determined to protect the privacy of their loved ones, despite intense pressure from the media. Thankfully, the court recognized the right of parents to protect against intrusion based on release of children’s photos. The Catsouras ruling updates this wise decision for the Internet age.

Today’s toxic mix of easy access to digital photos, easy global distribution via the Internet and the ability to distribute anonymously is a perfect storm for horrible intrusions.

It is not yet publicly known whether the Florida hospital employees distributed images of the shark attack victim, but the California appeals court has taken a good first step toward holding future Internet violators accountable for their actions.

We can only hope the California Supreme Court will uphold this ruling, and that other courts will support its principles.