The parents of a murder victim are suing Facebook after a paramedic pleaded guilty to photographing their daughter’s corpse and posting the image to the social networking site, according to court documents.
Paramedic Mark Musarella — who responded to their corresponding emergency call — later pleaded guilty to disorderly conduct after posting to Facebook the photographs he took, the documents said.
“All I want is my daughter’s picture back,” Martha Wimmer told CNN. “I want it destroyed,” noting that the image is no longer posted on the site.
The couple is suing Facebook in an effort to force the company to turn over the image, identify who may have downloaded the photograph and prevent the image from being further disseminated, according to the couple’s attorney Ravi Batra.
Facebook is relying on the CDA for a defense:
But the social networking site could be protected by the 1996 Communications Decency Act, which says “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Facebook spokesman Andrew Noyes said, “The case is without merit.” “We will fight it vigorously,” he added.
Beyond an statutory offenses, would this constitute an invasion of privacy? I addressed a similar issue in Omniveillance.
Under my proposed standard, perhaps.
For an example ripped from the headlines, a fire chief inFlorida photographed the breasts of a victim who had crashedinto a tree and e-mailed these photographs to several otherfire departments.321 In this case, the victim possessed asubjectively and objectively reasonable expectation of privacynot to be photographed, satisfying the first element of this tort. Furthermore, this recording of her breasts would beoffensive to a reasonable person, thus satisfying the secondelement of this tort. However, because the fire chief onlydistributed the picture to a limited circle of contacts, thequantum of distribution is so minimal that it would notsatisfy the third element of this tort.
In the event that one ofhis colleagues widely redistributed these images, this tort stillwould not apply. The right to your digital identity onlyapplies to individuals or organizations that perform thecomplete act of making the recording and indiscriminatelydisseminating it over the Internet. This comports withBartnicki, where the Supreme Court found a statute barringthe disclosure of unlawfully intercepted conversations asunconstitutional because the defendant in the case did notplay a role in acquiring the illegal material.322 Thus, neitherthe fire chief nor his colleagues would be liable, because noneof them took the photograph and widely distributed it, unlessthey were working cooperatively to achieve the massivedistribution.
Because the E.M.T. in this case took the photograph, and widely distributed it on his own Facebook, that may constitute liability.