The Catsouras Photos: Will a Family's Privacy Interest Impede Press Access?

The tragic story of Nikki Catsouras continues. I considered not giving yet more attention to the horrific accident photos she is now most known for, but the case still elicits a great deal of emotion and for that very reason it's important to address the law that is being decided in California. 

Those not familiar with Catsouras and the photos taken after her fatal car accident in 2006 can catch up here. I previously wrote about the ethical concerns over publishing the photos here. Clearly the case is ripe with moral and legal debate. Because the photos are so gruesome, the visceral reaction of most is to punish anyone who distributes them. An opinion (.pdf) last month by the 4th District Court of Appeals essentially does just that by allowing family member privacy rights in the death images of a relative. The problem is that every victim has family members who will now become potential plaintiffs when such photos are released. That added risk of legal liability is a clear disincentive for police to release information that would have been disclosed otherwise. Despite the court's protestation that "we do not have at issue here the freedom of the press," we do have at issue here the freedom of information.

For Nikki's parents, Christos and Lesli Catsouras, the potential relief this decision allows is seemingly well-deserved. Shortly after their daughter's death, two State of California Highway Patrol officers leaked photos of Nikki's accident scene, showing the 18-year-old woman badly mangled and nearly decapitated. Those photos quickly proliferated on the web. Christos then began to receive emails containing the photos and mocking Nikki's death. Christos and his wife sued the Department of the California Highway Patrol, for among other things, invasion of privacy. They claim the two officers, Thomas O'Donnell and Aaron Reich, invaded their privacy by disclosing private facts. Despite no current law recognizing such familial rights in the private facts of others, the 4th District Court of Appeals deemed the claim actionable.

On its face, allowing privacy rights to family of the deceased seems like a reasonable resolution. The family does have an interest in the body of their loved one so it can be easy to find an invasion of their privacy when photos of that loved one are released to the public. It's a novel concept in some jurisdictions, however, because privacy rights do not extend to the dead and the photos in question are only of the deceased. But the concept of family privacy rights is gaining traction. Two Florida courts recently allowed surveillance videos of a murder and a fatal car accident to be restricted under the state's normally liberal access laws. Florida's public record laws do no include an exception for the privacy of family members yet those courts allowed the state to limit access anyway.

"In both cases, the families argued that the victim's children would suffer severe emotional distress and trauma if the victim's deaths were displayed on the Internet," wrote Judith M. Mercier of Holland & Knight, the firm representing The Associated Press and The Palm Beach Post in the above cases. It's this type of emotional plea that seems to reign in the courtroom. Police should be able to freely disclose information of public concern without fear of a lawsuit. As Mercier described, in the West Palm Beach case, a camera caught the murder of a firefighter shot at the counter of a fast food restaurant. In the other case, a surveillance video recorded an individual being fatally hit by a vehicle. Records of both incidents would likely have been fully released under Florida law, but the two courts circumvented the state's statutes for the sake of each victim's family.

Now, for the first time, the 4th District Court of Appeals said public disclosure of private facts can apply to the family of the person of whom those facts are about. This type of invasion of privacy requires (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.

Under the first factor, O'Donnell and Reich publicly disclosed the photos when they emailed them to friends and family members. The second factor though is a more difficult call. The accident occurred on a public road and, before police cordoned off the scene, in public view. Generally, courts regard accidents under these circumstances to be public. This court, however, found that once the police tape went up, the public could no longer observe and photos taken afterward were of a private nature. Courts usually find otherwise. Because the accident and subsequent investigation occurred in public, those facts should be considered public as well. See Gilbert v. Hearst Pub. Co., 253 P.2d 441 (Cal. 1953) (holding that a newspaper is not liable for invasion of privacy through publication of private facts when publishing a photograph of a couple kissing at a farmer's market in San Francisco.)

Even if the photos are to be considered private, they still need to be deemed "offensive and objectionable" under the third prong. The question is not whether Christos and Lesli Catsouras find the photos of the accident offensive, but whether or not the average community member would. This is an easier standard to meet. To borrow the words of fellow CMLP contributor Marc Randazza, "Viewing the photos of this girl's body will make you feel like you've been kicked in the stomach. Crying would not be an unpredictable reaction -- not even from the most stoic individual. You will, most likely, wish that you had never seen it."

With the first three factors met, it's the fourth that's particularly problematic. Generally, courts employ a broad definition of what is newsworthy or of public concern. But "the line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). The Catsouras court relied heavily on Virgil, saying the officers distributed the photos only to provide a "vulgar spectacle" and did so out of "pure morbidity and sensationalism." Though the officers claimed at one point to email the photos as a warning of the risks of driving irresponsibly, I don't doubt those other motives apply. Still, the court should look beyond their motives and judge the photos by themselves: Are they newsworthy? Are they in the public interest, regardless of the officers' intent? The court definitively says no. I think that determination should instead be left to the press. Journalists unfortunately can't make that decision if officers are afraid to give them the information. Given this ruling, officers very well could be in the future.

The harassment Christos and Lesli Catsouras received following their daughter's death is despicable. The fact these parents had to see the photos of Nikki's accident is unfathomable. But the way the 4th District Court of Appeals chose to remedy that suffering is not the answer. The decision just makes it more difficult for the press to gather information and for law enforcement to act as they think is best. When police officers are weighing the disclosure of information against the avoidance of a potential lawsuit, who's going to blame them for choosing the latter?

 (Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its blog in 2009.)


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