Catsouras v. California Highway Patrol: California Court Recognizes Family's Privacy Interest in Death Scene Photos of Deceased Relative
On January 29, 2010, the California Court of Appeal issued an opinion holding that the family of a decedent could bring an action for invasion of privacy for the publication on the Internet of gruesome photos of their deceased daughter who was decapitated in an auto accident. Catsouras v. Dept. of the California Highway Patrol. Fn1. This decision does not mean that family members now have the right to bring a claim for the invasion of the privacy of a deceased relative. Rather it is merely an application of an established legal principle that the relatives of a person whose privacy was breached may bring suit, if the breach also invaded their own, separate privacy interests.
It is a fundamental tenet that privacy rights are personal and only the person whose privacy has been invaded can sue to recover damages for a breach. This means that if the victim has died, his relatives may not bring a claim for invasion of the victim's privacy either by suing personally, or on behalf of the deceased's estate. Fn2 As the law treatises put in -- there is no "relational right" to bring a claim for invasion of privacy. Fn3 Among the reasons for this limitation is a general judicial wariness towards claims of pure emotional injury, and concerns about permitting plaintiffs to gain a double recovery. Fn4.
However, courts have permitted relatives to recover where the breach also constituted an invasion of their own privacy rights. For example, in Vescovo v. New Way Enterprises, Ltd., the defendant ran a classified ad in an L.A. paper touting "Hot Lips --- Deep Throat Sexy young bored housewife Norma" and giving plaintiff Norma Vescovo's address. The California Court of Appeal permitted not only Norma, but also her 14 year old daughter, to bring claims for invasion of privacy. This was because the ad had resulted "in excess of 100 persons" coming to the Vescovo's home, day and night, "demanding to see Norma, creating disturbances, and using lewd, abusive and threatening language" and "in excess of 150 motor vehicles stopp[ing] in front or cruis[ing] slowly" by the residence, and subjecting the family, including the 14 year old, to neighborhood ridicule. Because the 14 year old sought to recover for the intrusion into her own seclusion, her claim was proper. Fn5
The Catsouras case fits into this exception. The facts of the case are tragic. On October 31, 2006, 18 year old Nicole Catsouras was decapitated in an automobile accident. CHP officers arrived at the scene and cordoned off the area. They also took multiple photos of the decapitated corpse. Two CHP officers allegedly emailed copies of these "graphic and horrific" photos to members of the public who were not involved in the investigation. Once released, the photos went viral and soon appeared on more than 2.500 websites around the world.
A number of Internet miscreants then decided to use the occasion to torture the decedent's relatives. For example, her father, Christos Catsouras, received several emails containing the photographs, include one entitled "Woo Hoo Daddy" that said "Hey Daddy I'm still alive." These and other emails caused the Catsouras's severe emotional and mental distress. As a result, the Catsouras's sued the CHP on invasion of privacy and related tort theories.
The Court of Appeal decision began by noting the strong legal tradition prohibiting a relative from maintaining an invasion of privacy action on behalf of a decedent. However, the Court also noted that some courts have found that relatives have a privacy interest in the "death images" of a decedent.
For example, in National Archives v. Favish, a case concerning a FOIA request for the death scene photographs of Vince Foster, the U.S. Supreme Court stated that "the right to personal privacy is not confined, to the "right to control information about oneself."" Here, Foster's family sought to prevent release of the photos, not "for fear that the pictures may reveal private information about Foster to the detriment of his own posthumous reputation or some other interest personal to him." Rather, "[t]hey [sought] to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased." Fn6.
The Supreme Court noted that "Burial rites or their counterparts have been respected in almost all civilizations from time immemorial." Accordingly, the Justices stated that they had "little difficulty . . . in finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member's remains for public purposes." Fn7.
The California Court of Appeal slotted the Catsouras case into this precedential line, holding that that "family members have a common law privacy right in the death images of a decedent." Fn8.
However, the Court of Appeal also found that this privacy right was limited. According to the Court, there may be cases in which "matters pertaining to the dead or dying may involve matters of public interest." This might permit use of pictures of a decedent for "public education about . . . paramedics' use of life-saving techniques."
However, in the Catsouras case, the Court found that no issues of public interest or press freedom were involved. Rather, "the picture painted by the . . . complaint is one of pure morbidity and sensationalism without legitimate public interest or law enforcement purpose." Accordingly, it found that the Catsouras family could bring an action for invasion of privacy against the CHP. Fn9.
Notes:
Fn1 Catsouras v. Dept. of the California Highway Patrol., Cal. Ct. App., 4th App. Dist., Div. 3, Nos. G039916, G040330 (Jan 29, 1020).
Fn2 Elder, Privacy Torts at § 1:3 (West 2002).
Fn3 Witkin, Summary of California Law, Torts § 653 (2005 and Supp. 2009).
Fn4 Elder, Privacy Torts at § 1:3 (West 2002).
Fn5 Vescovo v. New Way Enterprises, Ltd., (1976) 60 Cal. 3d 582, 588.
Fn6 National Archives v. Favish (2004) 541 US 157, 165
Fn7 Id. at 167.
Fn8 Catsouras, Opinion at 3.
Fn9 Catsouras, Opinion at 17.
