Daniel Solove writes:
Last year, I wrote about a case involving a lawsuit by a family against the California Highway Patrol (CHP) for improperly disseminating the accident-scene photos of their daughter (Nikki Catsouras), who perished in a gruesome automobile accident. Two dispatchers for the CHP emailed the photos to others, and they soon began being posted on the Internet. The family began receiving harassing phone calls.
They sued the CHP for public disclosure of private facts, intentional infliction of emotional distress, and a violation of the constitutional right to information privacy. The trial court dismissed the entire complaint.
The California court of appeals recently reversed. In its opinion, it concluded, correctly in my view (both doctrinally and normatively) that “[t]he dissemination of death images can only affect the living. As cases from other jurisdictions make plain, family members have a common law privacy right in the death images of a decedent, subject to certain limitations.” They can thus proceed to trial on their tort privacy claims.
An argument various online posters of the photos are likely to make is that they are protected by the First Amendment. In Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), the Supreme Court held that “[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” However, in the Catsouras case, the photos came not from any public record — they were improperly leaked. One question for the courts is how widely Cox Broadcasting should apply — to information in public records or to all information disseminated by the government, whether in an official public record or not.
Read more on Concurring Opinion.