Erin Andrews, Naked Videos, and Agency/Tort issues
posted by Elizabeth Nowicki
I read with horror the story about how some deranged pervert videotaped ESPN’s Erin Andrews through a peephole in her hotel room. The video, which included shots of a naked Andrews, was then widely released on the internet.
Tech experts like Grimmelman can correct me if I am wrong, but I am pretty sure you cannot un-ring the bell of releasing a video of a semi-nude Erin Andrews on the internet. Once a video like that is released, presumably other perverts will download it and save it locally, such that, even if the video is ultimately removed from the internet, it will likely still exist somewhere. Poor Ms. Andrews.
One of my first thoughts as an academic after reading about the situation was whether the hotel itself could face liability for allowing this to happen. If it was an employer who did the filming, does the hotel face liability? If a hotel employee “tipped” someone else about the fact that Andrews was in the hotel and gave Andrews’s hotel room number to someone else, who then booked the room adjoining that of Ms. Andrews’s in order to film her, would the hotel face liability? If the hotel does not have rules for employees regarding guest privacy, does that change that change the analysis?
July 27, 2009 at 8:22 am
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Responses (5)
Danielle Citron - July 27, 2009 at 10:06 am
Jacqui Lipton has a superb piece on just these kinds of risks and more broadly the privacy implications of this video world. It is coming out in the Iowa Law Review for those who are interested. Thanks for that post, Danielle
A.W. - July 27, 2009 at 10:50 am
> If the hotel does not have rules for employees regarding guest privacy, does that change that change the analysis?
I would tend to assume that the rule against filming people through peep holes without their consent kind of goes without saying, if only under a blanket “don’t do anything illegal” rule. I mean its kind of like wondering whether a hotel has a policy against what Norman Bates did (in the movie Psycho). Of course in the Bates case, the man was also the manager of the hotel, so there is that. Still although my common sense says this goes without saying, i would also have thought that the fact that fishooks are “harmful if swallowed” also goes without saying, but apparently fishook companies feel compelled to warn us probably because of some stupid lawsuit, so who knows?
incidentally, there was a case a few years ago involving a couple on their honeymoon and a two way mirror they didn’t discover until well after they unintentionally put on a show. i think that occurred long enough ago that the internet wasn’t an issue, but needless to say that was still pretty traumatizing and if memory served, they sued the bastard. that might provide a lead.
And as for the internet angle, i am sure it is impossible to eliminate all copies, period. on a similar topic, us lawyers have learned to say two things about email. first, never put anything in an email you wouldn’t put on a post card. second, email is forever.
Joseph Slater - July 28, 2009 at 1:07 pm
Filming somebody in their hotel room through a keyhole is a clasic “invasion of privacy” tort (and a fortiori if it is subsequently broadcast). At least most jurisdictions recognize that tort, last time I checked.
If Ms. Andrews can prove it was a hotel employee who did this (is there evidence that it was?) she might have an outside shot at trying to hold the hotel liable under a respondeat superior theory. But the problem there is that the hotel would argue that filming someone through a keyhole is not within the emmployee’s scope of employment, and only torts committed within the scope of employment create respondeat superior liability.
While some courts have gone beyond the traditional “was the employee attempting to further the employer’s business?” test for “within the scope of employment,” it would probably be a tough argument for plaintiff to win.
Elizabeth Nowicki - August 3, 2009 at 7:01 am
Mr. Slater gets the prize.
While we all know that it is a problem to film someone through the keyhole, the question is whether the HOTEL can be liable for their employee’s tort.
MDB - November 23, 2009 at 8:43 pm
Michael David Barrett will soon be going CAMPing with the Federal Bureau of Prisons (BOP). Read this post by a recent former inmate at the same “camp” as Joe Nacchio is currently hanging out at on the grounds of the Federal Bureau of Prison’s Schuylkill FCI in Minersville, Pennsylvania:
http://fprison.wordpress.com
It’s a non-stop party on the taxpayer dollar. That will teach Michael David Barrett a lesson.
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