Week Three Takeaways

In week 3, we reviewed some famous examples of online privacy related lawsuits, discussed Utah’s mugshot law, which was the question of the previous week, and discussed comments on the weekly blog post for anonymous plaintiffs. We also discussed potential factors in considering whether a court might consider on a plaintiff’s motion for anonymity.

The AP hijab photo case highlights difficulties in applying the privacy torts to a case where an AP photographer took a picture of a woman wearing a hijab at Starbucks, and it subsequently appeared in an article imploring women not to wear the hijab. One of the main difficulties in this suit was balancing the plaintiff’s interest against having her likeness misappropriated or being cast in a false light, against the first amendment interest in having the press access to photos taken in public places. For example, the false light tort requires actual malice and the content to be highly embarrassing to the person, and while having her photo posted next to an article that runs contrary to her beliefs is embarrassing, proving actual malice is a very difficult task.

The Question of the Week asked whether Utah’s Mugshot Law was sound public policy, and the class discussion examined issues like the inherent privacy interest in mugshots, and how they compete with societal interest in having these photos published, and here are some of the items from that discussion:

-               A constitutional interest of being “innocent until proven guilty” is not necessarily a privacy interest.

-               Misappropriation of name or likeness: the mugshot industry argues that they are posting the mugshots for public benefit.

-               False light claim: can be avoided if the mugshot website states that this is an arrest, and not a conviction.

-               Misappropriation claim

o   Difficult, because the publication of the photo is for a public purpose.

o   Plaintiff could argue that the only reason for publishing it is to profit by asking for money to take it down.

-               Are there competing societal interests in publishing mugshots?

o   There is a difference between a sex offender registry & website and the mugshot websites: the former are convicted, whereas the latter are merely arrested.

o   The case for mugshot websites is not as compelling as the sex offender industry.

-               Could the relevant governmental agency control access to mugshots under copyright law and require a license?

o   Salt Lake County had tried this approach.

o   First Amendment advocates argued that the government cannot copyright content that the public is entitled free access to.

-               Legislative responses:

o   13 states have passed laws regulating the posting of mugshots online

o   Numerous states have pending legislations to address the above issues.

o   Texas has created a private right of action for mugshots not removed within 30 days: attorney fees, $500/day, etc. in damages.

o   Class actions pending in 6 states against website owners who charged a removal fee.

o   Ohio class action suit settled in 2013 by 4 websites agreeing to no longer charge a fee to remove, and by paying named plaintiffs unspecified amount in damages and attorney fees.

o   Federal suit filed against Maricopa County Sheriff’s office on Fourth Amendment grounds was dismissed.

Chalene’s blog post examined the issues related to anonymous plaintiffs, and argued in favor of a uniform test. The class discussion examined various aspects of the issue including Sixth Amendment rights, societal value of ensuring public access to court proceedings, who should bear the burden of proceeding anonymously, and categories of plaintiffs who may be dissuaded from seeking redress in courts, absent anonymity (e.g. whistleblowers, victims of sexual abuse, etc.).

Finally, we also examined potential factors a court might consider in deciding whether to allow anonymous plaintiffs. The class worked through a hypothetical where a 17-year old plaintiff requested anonymity in a case of rape by an incumbent mayor running for re-election, by examining how a court might weigh each of the factors below. It is important to note that not all courts rely on all the factors below or weigh them equally:

-               Will the lack of anonymity unreasonably burden the plaintiff’s ability to file suit?

-               Will/could the plaintiff suffer mental or physical retaliation?

-               Will the plaintiff be forced to disclose information of a sensitive or highly personal nature?

-               Are the ages of the litigants relevant?

-               How significant in the instant case is the public interest in open courts?

-               Is the action against a government or private party?

-               Is the proceeding in a criminal or a civil case?

-               Will anonymity be unfair to the defendant or significantly impair the defendant’s rights?

-               Is the identity of the plaintiff necessary for the jury / court to assess the validity of the claims?