Tuesday, February 2, 2010
Court of Appeal Revives Privacy Suit Over Death Photos on Internet
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court of Appeal yesterday revived a suit against two California Highway Patrol officers who allegedly leaked grisly photos of an 18-year-old Orange County woman’s death in a vehicle collision that circulated on the Internet, drawing taunts against her family.
Reversing a ruling dismissing invasion of privacy, intentional infliction of emotional distress and negligence claims, Div. Three held that Nicole Catsouras’ family members had a common law privacy interest, subject to certain limits, in images of her mutilated corpse.
Justice Eileen C. Moore wrote that the officers and the CHP also owed the family “a duty of care not to place [Catsouras’] death images on the Internet for the purposes of vulgar spectacle.”
Catsouras was decapitated on Halloween in 2006 when the Porsche 911 she was driving at close to 100 miles per hour clipped another vehicle, tumbled over a median and smashed into a concrete tollbooth. Two CHP officers who responded to the scene, Thomas O’Donnell and Aaron Reich, allegedly e-mailed nine graphic photos of Catsouras’ lifeless body to friends unrelated to their investigation the same day for “shock value.”
The images spread virally to more than 2,500 websites on the Internet, and users at large sent Catsouras’ family e-mails containing the photographs, including one entitled “Woo Hoo Daddy” that said, “Hey Daddy I’m still alive.” Other users painted Catsouras’ life in a false light, including websites describing her as a “stupid bitch,” a “swinger” and a “spoiled rich girl [who] deserved it.”
Catsouras’ family sued the officers and the CHP, but Orange Superior Court Judge Steven L. Perk dismissed. Finding no duty on behalf of the officers to the family and no basis for a federal civil rights suit, he sustained demurrers by the officers and entered judgment for the CHP.
On appeal, Moore noted that a decedent—not family members—holds any cause of action for invasion of privacy as to media discussing or portraying the decedent’s life. However, after examining cases from other jurisdictions, she concluded that surviving family members do have a privacy interest in the decedent’s “death image,” subject to limitations involving issues of public interest or freedom of the press.
“How can a decedent be injured in his or her privacy by the publication of death images, which only come into being once the decedent has passed on,” she asked. “The dissemination of death images can only affect the living.”
Moore wrote that Perk erred in sustaining the officers’ demurrers to the cause of action for intentional infliction of emotional distress where Catsouras’ family alleged the officers acted with intent to cause them emotional distress.
She also said the family had a cause of action against the CHP and the officers for negligence supporting emotional distress damages because the officers and the agency owed a duty of care where it was foreseeable that Internet dissemination would cause Catsouras’ family “devastating trauma,” the officers’ alleged acts were “morally deficient,” and it was important to prevent such conduct from happening again in the future.
“It is a sad day, to be sure, when those upon whom we rely to protect and serve do the opposite, and make the decapitated corpse of a teenage girl the subject of international gossip and disrespect, and inflict devastating emotional harm on the parents and siblings of that girl,” she wrote. “The CHP should know better. Every one of its officers should know better.”
Civil Rights Action
However, the justice said Perk properly sustained the defendants’ demurrer as to the family’s 42 U.S.C. § 1983 cause of action against the CHP based on sovereign immunity. She also said the claim failed against the officers where the plaintiffs failed to plead facts sufficiently alleging a violation of a clearly-established constitutional right.
Justice William F. Rylaarsdam joined Moore in her opinion. Justice Richard M. Aronson concurred, but said he “would expressly limit any familial right of privacy in death images to photographs taken during an autopsy or for the coroner at a cordoned-off accident scene, and which serve no newsworthy public interest.”
The case is Catsouras v. California Highway Patrol, 10 S.O.S. 610.
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