{"id":52726,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/photography-and-privacy-in-cases-of-death-and-injury.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"photography-and-privacy-in-cases-of-death-and-injury","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/photography-and-privacy-in-cases-of-death-and-injury.html","title":{"rendered":"Photography And Privacy In Cases Of Death And Injury:"},"content":{"rendered":"\n
\n \n
\n
\n \n \n \n \n \n\n \n
<\/a><\/td>\n

PHOTOGRAPHY AND PRIVACY IN CASES OF DEATH AND INJURY: Princess Diana, Michael Skupin, And Dale Earnhart <\/h1><\/td>\n <\/tr>\n

By JULIE HILDEN <\/h2>
<\/a>\njulhil@aol.com<\/a>
\n—-\n
Thursday, Jul. 12, 2001<\/div><\/td>\n\n <\/tr>\n <\/table>\n

Are camera footage and still photographs of death and injury an invasion of \nprivacy, or are they appropriate forms of publicity? Three instances in which \ncameras captured injury or death shed light on the complex answer to this question.<\/p>\n\n<\/b>

Michael Skupin and Princess Diana<\/p>\n\n

When last season\u0092s “Survivor” contestant” Michael Skupin \nfell into a fire and was injured, a cameraman kept right on filming until medics \narrived. Not only that, but producer Mark Burnett remarked that if the cameraman \nhad put his camera down to help Skupin, “I would have fired [him] on the \nspot. He would have been on the next plane out.” <\/p>\n

Later, a smiling Skupin claimed his hands had undergone a miraculous cure, \nin which God had played a role. Skupin seemed to hold no ill will towards Burnett \n\u0097 who had, at least, lent a shoulder to carry Skupin\u0092s stretcher. <\/p>\n

Still, did Burnett get off easy? Compare Skupin\u0092s reaction to the anger \nonce focused on a photographer who failed to aid a dying Princess Diana and took \nphotographs of her instead. He <\/p>\n<\/span>\n\n \n \n
<\/td>\n\"[capturing<\/span><\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\n

was blasted with scorn and contempt because he made a claim (somewhat similar \nto Burnett\u0092s) that it was not his duty to help; rather, it was his job to \nchronicle the tragic event. <\/p>\n

Indeed, the taint on photographs of the dying Diana was so strong that most \nnews outlets, and even some tabloids, refused to buy them. Compare that to the \nfate of the Skupin footage: Hardly seen as an invasion of privacy, it was replayed \nover and over, becoming a major selling point of the “Survivor” season. \n<\/p>\n

Of course, there were dramatic differences between Skupin\u0092s situation \nand Princess Diana\u0092s. Diana was a beloved public figure who got into a car \naccident as she was trying to avoid paparazzi; Skupin was happily and willingly \nliving his life, for a time, on camera, competing for a one million dollar prize. \nDiana died tragically; Skupin recovered. <\/p>\nfootage at issue \u0097 which was uniformly graphic \u0097 as to who was being \ndepicted and whether or not the person would have wanted to be portrayed in that \nlight. This indicates that although we may pretend to have an absolute concept \nof privacy, our definition of privacy is, instead, an increasingly individualized \none. \n\n<\/b>

Individualizing Privacy <\/p>\n\n

\n\nWhen Timothy McVeigh was executed, the debate focused primarily, again, on \nwho he was, not on what would be shown. Most people would have scoffed at the \nidea that McVeigh even had privacy rights \u0097 believing he had “waived” \nany such rights with his crime, or his lack of repentance for it. Skipping over \nany concern that televising McVeigh would violate his privacy or dignity, the \ndebate centered instead on the question of who would get to watch: the press, \nthe public, or just the victims\u0092 families?<\/p>\n

<\/p>\n

Again, who was being photographed, and the attitude of that person about being \nphotographed, rather than the photograph\u0092s content, seemed to be what counted \nmost. McVeigh and Diana were equally photographed in their dying throes, but to \neven compare their situations would be considered heresy. <\/p>\n\n<\/b>

The Author of Life and Death <\/p>\n\n

Philosopher of law Ronald Dworkin has suggested that one reason for society \nto allow doctor-assisted suicide is to respect the individual\u0092s ability to \nbe, in a sense, the author of his or her own life. We should, he suggests, be \nable to control our own deaths, so that they are in keeping with our character \nand the way we see ourselves. <\/p>\n

Dworkin\u0092s idea might be extended to suggest that we should be able to \ncontrol depictions of our deaths (and injuries), just as we should be able to \ncontrol the extent to which we suffer them. <\/p>\n

Skupin was happy to see his injury footage shown; for him, the photos of the \ninjury, combined with his quick healing, provided evidence of his intense faith. \nDiana likely would have been horrified at having her death photos shown. For McVeigh, \nthe fact that his execution was televised likely completed his delusion of martyrdom. \n<\/p>\n

This idea also helps explain why we, the public, should have such individualized \nreactions to similarly graphic photographs \u0097 focusing on who is being depicted, \nrather than what is being depicted, even if the nature of the footage might be \nsimilar.<\/p>\n\n<\/b>\n

In practice, the question relevant to our belief as to whether privacy has \nbeen invaded is often whether, from the subject\u0092s point of view, the footage \ncompletes a life, or thwarts it. <\/p>\n

In the recent controversy over autopsy photos of NASCAR driver Dale Earnhart \n\u0097 killed in a crash during the Daytona 500, the Orlando Sentinel<\/i> attempted \nto view Earnhart\u0092s autopsy photos, but was prevented from doing so by his \nwidow, Teresa. <\/p>\n

The paper said it wanted to view (but not publish) the photos as part of its \ninvestigation into NASCAR safety issues, to try to substantiate its belief that \nEarnhart\u0092s injuries, and those of other drivers, might have been prevented.<\/p>\n

But Teresa Earnhart successfully lobbied for legislation \u0097 eventually \nsigned by Florida governor Jeb Bush \u0097 making it a felony for a medical examiner \nto make autopsy photos public. (State law on autopsy photos varies significantly, \nand Florida had not previously protected such photos. State law also varies on \nthe question whether invasion of privacy and “right of publicity” tort \nclaims \u0097 which afford a possible civil remedy when photos of private activity \nare published \u0097 survive death.) <\/p>\n

The Sentinel<\/i> challenged the legislation on First Amendment grounds, \nbut the parties settled out of court. They agreed that only a court appointed \nmedical examiner could view the photographs, and that the Sentinel <\/i>could \nuse that information in its investigation <\/p>\n

As Earnhart\u0092s widow, Teresa Earnhart probably knows best what her late \nhusband would have wanted, and what aspect of his life he believed was private. \nOf course, her decision to keep the photos private has the consequence of preserving \nan idealized vision of car racing \u0097 one that stresses the excitement more \nthan the risks. But that vision, too, may have been consonant with Earnhart\u0092s \nconception of his own life. <\/p>\n

Now, imagine that, instead of Earnhart, car safety activist Ralph Nader had \ndied in a Florida car accident, and the Sentinel<\/i> wanted to investigate \nwhether Nader\u0092s accident was preventable. Certainly his <\/i>next-of-kin \nmight want to carry out his wishes by making the autopsy photos public\u0097 and, \nironically, they might even go to court to get them released. Is that because \nNader has less of a sense of privacy than Earnhart did? No, simply that the two \nwould likely define their privacy differently. <\/p>\n

In short, we should stop thinking of privacy as a question of what we see, \nand do not see, and begin to think of it as a question of what the subject wants \nus to see, or not see, and why. <\/p>\n<\/span> \n\n

\n\n\n<\/a>\nJulie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir “The Bad Daughter.” She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99. \n\n

\n\n<\/p>\n <\/div>

\n \n Was this helpful?<\/span>\n \n Yes<\/span>\n \n \n \n <\/path>\n <\/g>\n \n \n <\/rect>\n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n \n No<\/span>\n \n \n \n \n <\/g>\n \n \n \n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n <\/div>\n <\/span>\n