Family Privacy Rights in Death-Scene Images of the Deceased

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7 Responses

  1. I understand that these photos were taken by CHP and then leaked. Would CHP have been within its proper authority to ban 3rd party photos had some photographers attempted to take them? Does the purpose behind the release of the photos matter as to the Catsouras family’s interests? How far do their interests stray from those families whose relatives return to Dover AFB if MoveOn.org wannabe groups want to use those photos to whip up anti-war sentiments?

  2. Bruce Boyden says:

    I agree with the post.

  3. Jonathan says:

    Interesting to compare this with European law, where the analysis would be that the police as a public authority were acting in breach of the Catsouras’ family’s rights to privacy under Article 8 of ECHR. US privacy law might benefit from closer attention to the recent European developments in this field. There’s a good example, applied in the context of a man’s attempt to access social work records relative to his deceased mother, in the decision of the Scottish Information Commissioner at http://www.itspublicknowledge.info/UploadedFiles/Decision165-2007.pdf. He says this:

    “33. I will first consider whether the disclosure of the information in Mrs S’s social work file would constitute an unjustified interference with the right contained in

    Article 8(1). As noted in the guidance issued by the Information Commissioner and referred to above, a number of matters may be relevant: the more recent the death and the more sensitive the information, the more likely that disclosure would have an adverse effect on the rights of the surviving people closely connected to the deceased.

    34. However, a public authority must consider all the other requirements of Article 8(2) including whether or not disclosure would be proportionate in relation to the harm that may be caused. Article 8(2) provides:

    There shall be no interference by a public authority with the exercise of this right [the right to respect for private and family life, home and correspondence] except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    35. Having reviewed the information contained in the social work file, I am satisfied that the disclosure of the information contained in the social work files would be an intrusion on the privacy of surviving relatives and would amount to a real and definite breach of their private or family life. I have also considered whether Article 8(2) would allow disclosure and whether or not the disclosure would be proportionate in relation to the harm that may be caused. I do not consider that the disclosure would be allowed by Article 8(2) or would be proportionate in the circumstances, particularly given that release of the information in response to Mr S’s information request under section 1 of FOISA would result in the social work file being in the public domain. “.

    And see the answer to Maryland Conservatarian’s important first question in von Hannover v. Germany, [2004] ECHR 294.

  4. What is Solove’s connection to Reputation Defender?

  5. I have no affiliation with Reputation Defender.

  6. Ok, I must have mis-read something. Glad I asked. Moving on…

    Lets start where we agree.

    But some of the conduct alleged in this case — people deliberately contacting members of the Catsouras family and assaulting them with the images — goes beyond the umbrella of First Amendment protection in Cox.

    Amen. The Newsweek article says:

    Just days after Nikki’s death, her father, a local real-estate agent, clicked open an e-mail that appeared to be a property listing. Onto his screen popped his daughter’s bloodied face, captioned with the words “Woohoo Daddy! Hey daddy, I’m still alive.”

    The reporting is tabloid-level at best, so I’m taking everything in it with a grain of salt. Nevertheless, lets presume this is true. This smells like pure IIED to me, and I see very little First Amendment protection for that email. There may be some, but not enough to fend off an IIED claim.

    However, with respect to the “information privacy” claim – I can’t agree. If you do something in public, whether it is peeing on the sidewalk, flashing, tripping over stick, or dying in a horrible gruesome manner — that makes it public.

    One would hope that fellow members of society would have some decency and not republish the photos. However, there was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.

    But this is different to many because it was a wealthy, young, gorgeous, white, girl.

    I don’t think this is as much about privacy as it is about privilege. Just as Brandeis and Warren penned their Right to Privacy because the rabble was daring to report on the excesses of the Boston Brahmins, there seems to be a similar shriek from the walls that protect the new Brahmins.

    The cops who leaked this photo claim to have done so to scare kids into being careful behind the wheel. But, lets presume that it was, at least in part, mere “barbecuestopper” stuff. The failures of the wealthy and privileged have always been the stuff of lower-class gossip and glee. A hundred kids get left on the street by an inattentive parent every day, but when it is a big law firm wealthy white woman, it becomes a newsworthy event. Had this been a beat up Chevy Lumina with duct tape on the fenders, it wouldn’t have been forwarded three times. A big shiny Porsche and a beautiful young pilot with cocaine in her system — now it is a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.

    I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.

    But, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. But, if we all turned each of those experiences into a lawsuit or legislative action, we would have a patchwork of laws created by the outlier incidents, pushed for by only the overprivileged like you, me, and the Catsourases. Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents. That is not a result I want to see.