By Aimee E. Farr
Does a dead man have interests in the physical integrity of his body?
Nor does he have a cause of action that will survive his death for his heirs to assert if his body is injured - death has already occurred. To provide a remedy for this situation, the law has recognized the interests of family members through the 'ole "mistreatment/mishandling of corpse" actions, which the courts refer to as "a special case."
In a like vein, courts have given special consideration to the circumstances surrounding a person's death by recognizing a privacy interest in the decedent's heirs. Heirs generally do not succeed to a privacy claim as it is a "personal" tort, and does not normally "survive" the victim, adhering to the old common law of England. However, see Reid v. Pierce County, 961 P.2d 333 (Wash. 1998) (holding family members have privacy interests in the autopsy records of decedents).
Within an FOIA context, courts have withheld JFK autopsy records and Challenger space shuttle recordings, finding that the records of the decedents were personal in nature, property of the decedents' estates, and not subject to disclosure.
And what about the news coverage?
"Invasion of privacy" is often mischaracterized by the media as a singular cause of action. There are four privacy torts: unreasonable intrusion upon seclusion/private affairs, public disclosure of private facts, appropriation, and false light in the public eye. (Privacy mileage in your state may vary.)
In the matter at hand, usually brought in terms of public disclosure of private facts, the courts will try to *balance* the competing interests by asking:
(1) is the matter made public one which would be highly offensive and objectionable to a reasonable person?, and
(2) does the public lack a legitimate interest in the information?
Photos and video on the evening news are usually not highly offensive to a reasonable person, and are usually in the public interest.
Why should a state be able to publish photos for a it be permissible for the state to (before the new law passed) make the photos available to anyone willing to trek down to the courthouse but impermissible to publish them?
A "reasonable basis" for legislation is a legal term of art, and is often anything but reasonable. Law and commonsense are distinct concepts, often light-years apart when legislatures are in session.
Why should garnering public records would not be actionable as an intrusion upon seclusion/private affairs, yet publishing the information would be actionable as public disclosure of private facts. It does seem to defy logic.
Courts have held that merely because a fact is "in the public view" does not mean that it should be subject to mass public disclosure when it does not involve a matter of public concern: the Justicefiles.org decision
("...there is a compelling interest in keeping Social Security numbers private; the disclosure of that information is highly offensive to the reasonable person; it is not of legitimate concern to the public.")
One of the very first privacy cases involved a celeb appearing on stage in *tights* when somebody took a picture with the aid of a flashlight (Manola v. Stevens, N.Y. Sup.Ct. 1890, in N.Y. Times, June 15, 18, 21, 1890 (defendant enjoined from publishing, a portrait of Manola is here:
While often cited in terms of appropriation, this early case still stands for the proposition that something can be rather public, and yet private. A woman's legs were rather private in 1890, and her feelings in this regard deserving of weighty consideration).
See also, Daily Times Democrat v. Graham, 1964, 276, Ala. 380, 162 So.2d 474 (woman photographed when dress blown up in a fun house); Street v. National Broadcasting Co., 6th Cir. 1981, 645 F.2d 1227, certiorari dismissed 454 U.S. 1095, 102 S.Ct. 667 (finding no invasion of privacy in the historical drama of a rape which happened decades earlier, because the plaintiff was a public figure).
"Of the desirability - indeed of the necessity - f some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery."
Warren and Brandeis, The Right to Privacy, 1890, 4 Harv.L.Rev. 193, 196.
Aimee E. Farr
Attorney At Law
USA: Man Sues Site Over Autopsy Photos
By Aimee E. Farr