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PHOTOGRAPHY AND PRIVACY IN CASES OF DEATH AND INJURY: Princess Diana, Michael Skupin, And Dale Earnhart

Thursday, Jul. 12, 2001

Are camera footage and still photographs of death and injury an invasion of privacy, or are they appropriate forms of publicity? Three instances in which cameras captured injury or death shed light on the complex answer to this question.

Michael Skupin and Princess Diana

When last season’s "Survivor" contestant" Michael Skupin fell into a fire and was injured, a cameraman kept right on filming until medics arrived. Not only that, but producer Mark Burnett remarked that if the cameraman had put his camera down to help Skupin, "I would have fired [him] on the spot. He would have been on the next plane out."

Later, a smiling Skupin claimed his hands had undergone a miraculous cure, in which God had played a role. Skupin seemed to hold no ill will towards Burnett — who had, at least, lent a shoulder to carry Skupin’s stretcher.

Still, did Burnett get off easy? Compare Skupin’s reaction to the anger once focused on a photographer who failed to aid a dying Princess Diana and took photographs of her instead. He

was blasted with scorn and contempt because he made a claim (somewhat similar to Burnett’s) that it was not his duty to help; rather, it was his job to chronicle the tragic event.

Indeed, the taint on photographs of the dying Diana was so strong that most news outlets, and even some tabloids, refused to buy them. Compare that to the fate of the Skupin footage: Hardly seen as an invasion of privacy, it was replayed over and over, becoming a major selling point of the "Survivor" season.

Of course, there were dramatic differences between Skupin’s situation and Princess Diana’s. Diana was a beloved public figure who got into a car accident as she was trying to avoid paparazzi; Skupin was happily and willingly living his life, for a time, on camera, competing for a one million dollar prize. Diana died tragically; Skupin recovered.

footage at issue — which was uniformly graphic — as to who was being depicted and whether or not the person would have wanted to be portrayed in that light. This indicates that although we may pretend to have an absolute concept of privacy, our definition of privacy is, instead, an increasingly individualized one.

Individualizing Privacy

When Timothy McVeigh was executed, the debate focused primarily, again, on who he was, not on what would be shown. Most people would have scoffed at the idea that McVeigh even had privacy rights — believing he had "waived" any such rights with his crime, or his lack of repentance for it. Skipping over any concern that televising McVeigh would violate his privacy or dignity, the debate centered instead on the question of who would get to watch: the press, the public, or just the victims’ families?

Again, who was being photographed, and the attitude of that person about being photographed, rather than the photograph’s content, seemed to be what counted most. McVeigh and Diana were equally photographed in their dying throes, but to even compare their situations would be considered heresy.

The Author of Life and Death

Philosopher of law Ronald Dworkin has suggested that one reason for society to allow doctor-assisted suicide is to respect the individual’s ability to be, in a sense, the author of his or her own life. We should, he suggests, be able to control our own deaths, so that they are in keeping with our character and the way we see ourselves.

Dworkin’s idea might be extended to suggest that we should be able to control depictions of our deaths (and injuries), just as we should be able to control the extent to which we suffer them.

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

This idea also helps explain why we, the public, should have such individualized reactions to similarly graphic photographs — focusing on who is being depicted, rather than what is being depicted, even if the nature of the footage might be similar.

In practice, the question relevant to our belief as to whether privacy has been invaded is often whether, from the subject’s point of view, the footage completes a life, or thwarts it.

In the recent controversy over autopsy photos of NASCAR driver Dale Earnhart — killed in a crash during the Daytona 500, the Orlando Sentinel attempted to view Earnhart’s autopsy photos, but was prevented from doing so by his widow, Teresa.

The paper said it wanted to view (but not publish) the photos as part of its investigation into NASCAR safety issues, to try to substantiate its belief that Earnhart’s injuries, and those of other drivers, might have been prevented.

But Teresa Earnhart successfully lobbied for legislation — eventually signed by Florida governor Jeb Bush — making it a felony for a medical examiner to make autopsy photos public. (State law on autopsy photos varies significantly, and Florida had not previously protected such photos. State law also varies on the question whether invasion of privacy and "right of publicity" tort claims — which afford a possible civil remedy when photos of private activity are published — survive death.)

The Sentinel challenged the legislation on First Amendment grounds, but the parties settled out of court. They agreed that only a court appointed medical examiner could view the photographs, and that the Sentinel could use that information in its investigation

As Earnhart’s widow, Teresa Earnhart probably knows best what her late husband would have wanted, and what aspect of his life he believed was private. Of course, her decision to keep the photos private has the consequence of preserving an idealized vision of car racing — one that stresses the excitement more than the risks. But that vision, too, may have been consonant with Earnhart’s conception of his own life.

Now, imagine that, instead of Earnhart, car safety activist Ralph Nader had died in a Florida car accident, and the Sentinel wanted to investigate whether Nader’s accident was preventable. Certainly his next-of-kin might want to carry out his wishes by making the autopsy photos public— and, ironically, they might even go to court to get them released. Is that because Nader has less of a sense of privacy than Earnhart did? No, simply that the two would likely define their privacy differently.

In short, we should stop thinking of privacy as a question of what we see, and do not see, and begin to think of it as a question of what the subject wants us to see, or not see, and why.

Julie 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.

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