(via The Guardian’s Tech blog) What is it about the relative anonymity awarded by the internet that turns some people into monsters? Read the story of the Catsouras family, where gruesome pictures taken after the tragic death of their daughter started being distributed all over the internet. Nikki Catsouras had been taking cocaine, stole her father’s Porsche and crashed into a tollbooth. One of the policemen at the scene took a picture and forwarded it to someone else in the community, where it went viral on the underbelly of cyberspace. Then followed a collection of comments in forums and emails that showcase the worst part of the online world, with people commenting on spoiled brats, the fact that she had been using cocaine, how she deserved it, and even comments on how the accident was a waste of a good Porsche. At some point, someone even sent Christos Catsouras a picture of the nearly-decapitated daughter with the caption “Woohoo Daddy! Hey daddy, I’m still alive.”
The case highlights the legal void that surrounds internet trolling. The family tried several legal avenues to stop the spread of the pictures, including cease-and-desist letters, code, and even the intervention of a firm specialising in removing damaging personal content from the internet. All of these failed because there is no liability for trolling. Defamation law does not fit, neither does copyright as the picture was owned by the policeman who first took it. Privacy legislation in the U.S. is also inadequate for this type of event, and personality and image rights do not fit either. The Catsouras family even attempted to sue the California Highway Patrol for negligence, privacy invasion, and infliction of emotional harm, but they were unsuccessful because privacy rights do not extend to the dead. The case is under appeal.
I have been thinking on how the case would have been dealt with in this side of the Atlantic, and I think that we suffer from a similar deficiency in legal certainty in this issue. Would the nebulous privacy right we enjoy apply? What about data protection? Can the dead be data subjects?
There is an inherent problem in regulating behaviour that is deemed offensive, deceitful, morally harmful and distressing. The main issue is that if we try to legislate against actions that cause subjective offence, this would cover way too much behaviour online. Having said that, internet trolls have been thriving precisely because they are largely immune from prosecution, and even the most blatant displays such as this one go unpunished. There must be some way in which the law can respond to something that is so glaringly wrong as the online publication of pictures of a recently-deceased teenager without compromising other digital liberties.
6 Comments
RW · April 27, 2009 at 4:51 am
On the issue about whether the deceased can be data subjects, you could read the PRIVIREAL project which examined this very notion. The Data Protection Directive 95/46/EC does not explicitly prohibit the protection of deceased data subjects, though the wording under Art. 1 of the DPD expressly provides that "MS shall protect the fundamental rights and freedoms of natural persons.." There is a practicality point in the sense – how can the deceased make a subject access request (SAR)? Could the estate do this on the deceased data subject's behalf? In any case, the recommendations from PRIVIREAL (2 books have already been published) is worth reading http://www.privireal.org/content/recommendations/….
RW
Andres · April 27, 2009 at 5:20 am
I was unaware of PRIVIREAL's recommendations, so thanks for linking to them, excellent stuff!
John H · April 27, 2009 at 5:28 am
The UK Data Protection Act specifically defines personal data as "data belonging to a living individual", so that closes the question off as regards the current UK implementation of the Directive.
Extending data protection rights to the dead would be problematic, partly because data protection rights are precisely intended to be exercised by the affected individual rather than by others on their behalf. (This causes complications with personal data relating to children, for example – where I would say the need for clearer guidance is more urgent than in relation to dead people.)
That said, it does seem odd that the moment someone dies, their personal data falls into a legal abyss. So perhaps some form of limited continuance of data rights (e.g. as regards subject access requests) for say five years after death would not be too onerous for data controllers.
As regards the Catsouras case, I wonder if anti-harassment legislation could be applied? Certainly in the case of the vicious moron emailing the young woman's father, but given the breadth of scope of anti-harassment legislation, almost anyone who was offended or distressed by the images could presumably bring a complaint.
I wonder if the end-result of cases such as this will be an explicit extension of public order legislation to the internet. If someone behaved like this in "real life" – putting up posters of the images in public places etc. – then they would probably be charged with some sort of public order offence.
There must be some way in which the law can respond to something that is so glaringly wrong as the online publication of pictures of a recently-deceased teenager without compromising other digital liberties.
One would certainly hope so. Experience, alas, tends to indicate the opposite: legislation whose stated intent is to tackle these "obviously wrong" cases soon expands its scope to cover less obvious situations. Hard cases making bad law, and all that.
Cedric · April 27, 2009 at 5:56 am
When Max Mosley tried to prevent the viral dissemination of an intimate video, a court ruled: "Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. (…) Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available" (London High Court of Justice, April 9, 2008).
Jonathan · April 29, 2009 at 5:57 pm
The Scottish Information Commissioner has pointed out that, albeit the DPA doesn’t directly protect the personal data of the deceased, Article 8 of ECHR may effectively do so if its disclosure intrudes on the privacy of surviving relatives or others.
In a case in which a man sought his deceased mother’s social work records (to support an attack on her will) under FOISA, these being refused by Edinburgh CC, he said: "33. I will first consider whether the disclosure of the information in Mrs S’s social work file would constitute an unjustified interference with the right contained in Article 8(1). As noted in the guidance issued by the Information Commissioner and referred to above, a number of matters may be relevant: the more recent the death and the more sensitive the information, the more likely that disclosure would have an adverse effect on the rights of the surviving people closely connected to the deceased. 34. However, a public authority must consider all the other requirements of Article 8(2) including whether or not disclosure would be proportionate in relation to the harm that may be caused. Article 8(2) provides: There shall be no interference by a public authority with the exercise of this right [the right to respect for private and family life, home and correspondence] except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 35. Having reviewed the information contained in the social work file, I am satisfied that the disclosure of the information contained in the social work files would be an intrusion on the privacy of surviving relatives and would amount to a real and definite breach of their private or family life. I have also considered whether Article 8(2) would allow disclosure and whether or not the disclosure would be proportionate in relation to the harm that may be caused. I do not consider that the disclosure would be allowed by Article 8(2) or would be proportionate in the circumstances, particularly given that release of the information in response to Mr S’s information request under section 1 of FOISA would result in the social work file being in the public domain. “
See http://www.itspublicknowledge.info/UploadedFiles/…. This analysis seems to me to be correct.
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