Doe v. Young: Can a Physician Be Liable for Invasion of Privacy for Disclosing Anonymized Photos of a Plaintiff's Torso to a Reporter?
Digital media law update: Can a physician be held liable for disclosing "before and after" photographs of one of his patients to a third party, if the photos don't show her face or state her identity? According to a judge in the Eastern District of Missouri, is "yes" -- but only if the photos provide sufficient detail for someone to figure out who she is.
The case, Doe v. Young, E.D. Missouri, No. 4:08-cv-00197, involves a woman who received plastic surgery in St. Louis, Missouri to removed excess loose skin after she lost substantial weight through water aerobics. The defendants, who were her plastic surgeons, took 65 photos of the woman before and after her surgery. These depicted her face, head, hairstyle, hair and chin, as well as her body in full frontal and posterior naked poses.
Prior to her surgery, the woman filled out a "Photo Consent Form" in which she agreed to the use of her photos for "insurance predeterminations, medical presentations and/or articles." However, she expressly refused to consent to the disclosure of the photos for a list of other purposes, including seminars for prospective patients, websites, advertisements or television.
Nevertheless, the surgeons provided a disk to a reporter for a St. Louis newspaper, the Riverfront Times, which contained photos of the patient's torso, head, hair, and chin, and also provided her initials and written information about her medical history. The Times then published an article about the surgeons that included two photographs of the patient, one before and one after surgery, that depicted her from the neck down to the mid-calf, without showing her head or face. The article appeared in both the Times' print and on-line editions.
The patient, who was living in Georgia at the time the article appeared, learned about it a year later, and filed suit against the surgeons for invasion of privacy under intrusion on seclusion, public disclosure of private facts and misappropriation of name and likeness theories.
The surgeons filed a motion for summary judgment claiming that they could not be held liable for invasion of privacy because the plaintiff could not be identified from the photographs. The argued that the photos did not identify the plaintiff by name and did not contain any identifiable features about her, and that no individual had recognized her from the photos.
While the judge denied the surgeons' motion, he agreed with the notion that to recover for any invasion of privacy claim, the plaintiff's identify must have been disclosed. For example, in Rawls v. Conde Nast Publications, 446 F.2d 313, 318 (5th Cir. 1971), the 5th Circuit denied a claim for invasion of privacy where a photograph of the plaintiffs' home was published, but all possibility of identification was carefully obliterated before publication. The 5th Circuit reasoned that "the plaintiff may not recover for invasion of privacy when, as here, her privacy remains inviolate."
In the case before it, the Court concluded that the surgeons had failed to present sufficient evidence to determine whether the patient could be identified from the published photos or not. As a result, it refused to grant summary judgment on all three privacy claims, leaving this issue for a jury.
The Court got part of this analysis right and part of it wrong.
What the Court got right is that to recover on a claim of publication of private facts or misappropriation of name and likeness, a plaintiff's identity must be disclosed. Although, I might quibble that misappropriation of photos of a plaintiff's torso for gain should be compensable as a species of intellectual property tort, even if the plaintiffs' identity is not disclosed.
What the Court clearly got wrong was to assume that publication is an element of all of the invasion of privacy torts. The tort of intrusion upon seclusion does not require a showing of publicity of private facts about the plaintiff, merely an intrusion into the plaintiff's privacy through unreasonable means. See Corcoran v. Southwestern Bell Telephone Co., 572 S.W.2d 212, 215 (Mo. Ct. App. 1978), Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971). So a plaintiff should be able to recover on an intrusion of seclusion cause of action regardless of whether her identity can be determined from published photos
However, there is a separate problem with the plaintiff's case in Doe v. Young -- the plaintiff appears to have consented to the taking of the photos. This means that the photos were not taken using "unreasonable means." See Rawls v. Conde Nast, 446 F.2d at 316-17 (consent is a defense to an intrusion on seclusion claim). So this claim may yet be in trouble.
All in all, this case shows the limits of actions for invasion of privacy. While a plaintiff may feel personal embarrassment to see photos of her body published for the world to see, unless these photos expose her to public ridicule and shame, courts may not be willing or able to award damages.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
