Playboy model Dani Mathers faces criminal charges for privacy invasion related to a July 14, 2016, body-shaming incident. According to several news accounts, Ms. Mathers was at an L.A. Fitness gym on July 14, 2016. While in the gym locker room, she used her cell phone to take a photograph of an unsuspecting woman who was naked and in the shower. Ms. Mathers reportedly shared the photograph through Snapchat with the caption “If I can’t unsee this then you can’t either.”
Ms. Mathers has publicly stated she did not intend to invade anyone’s privacy and inadvertently shared the photo because she did not know how Snapchat worked. She is scheduled to be arraigned later this month in a Los Angeles court.
If the woman Ms. Mathers photographed were inclined to sue her, she could bring several viable claims. Civil tort laws protect the woman’s right to privacy and provide a means to obtain compensatory damages, and in cases like this, exemplary (or punitive) damages when that right is violated.
Claims the woman could bring would vary state by state, but most states provide a similar structure and recognize similar kinds of harm.
Intrusion upon Seclusion
An individual who intentionally intrudes upon the privacy of another can be liable if the conduct would be very offensive to a reasonable person and caused harm to the victim. This cause of action, known as invasion of privacy by intrusion upon seclusion, includes physical intrusions into a private place and many other invasions of a person’s private affairs. See Restatement (Second) of Torts § 652B. It does not require the invasion of privacy to be publicized. Id.
The act of taking another woman’s photograph in a private space such as a gym locker room or bathroom could establish liability, regardless of how many people saw the photograph after the fact or how much clothing the woman was wearing.
Taking a nude photograph of a woman without permission and subsequently publishing it to a vast online audience of strangers would undoubtedly be an extremely offensive intrusion. The extent of the harm could be tied to the level of publicity the photograph received and would likely increase the money a jury would award the woman for damages.
Public Disclosure of Private Facts
Many states also recognize an invasion of privacy can occur through the public disclosure of private information. In such a claim, an individual can be liable for giving publicity to a person’s private information, including images or photographs of the person, if 1) the disclosure would be highly offensive to a reasonable person, 2) the information disclosed was private and not a matter of public record or concern, and 3) the disclosure caused harm. See Restatement (Second) of Torts § 652D.
A woman walking on the street outside a gym is arguably in a public place. Her privacy is not invaded if someone takes a photo of her in those circumstances. On the other hand, a woman in a locker room shower is entitled to the reasonable expectation she is in a private place and that her activities in that space are private. Taking a photograph of her without her permission and publishing that photograph to the public at large invades her privacy and she should be compensated for that harm.
Intentional Infliction of Emotional Distress
A person can also recover damages for severe emotional harms caused by another’s intentional (or reckless) extreme and outrageous conduct. Restatement (Second) Torts § 46. A stand-alone claim for IIED is not typically favored by courts but it is a viable cause of action where “the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at cmt. d. Petty indignities would not rise to the level of extreme and outrageous conduct. Id.
However, intentionally publishing a photograph of an unsuspecting naked woman in a shower, to express disgust over the woman’s body, should be the sort of conduct that would arouse the resentment and condemnation of an average person in the community. Id.
Damages for emotional distress can vary greatly, depending in part on the nature and duration of the harms. Arguably, a photograph published online could garner attention indefinitely until or unless it is removed from every website that hosted or republished it. The long-lasting effects of such publicity could move reasonable jurors to award significant damages for the harms caused.
Violating criminal laws can also give rise to civil liability in the form of negligence claims. Negligence generally refers to harm caused by someone’s carelessness or failure to act. If a person violates a criminal law that was enacted for the protection and safety of the public or that defines a standard of a reasonable person’s conduct in the circumstances, that person may be civilly liable for negligence per se. See Restatement (Second) Torts § 288B.
In Arizona, a criminal statute prohibits surreptitiously photographing someone in a state of undress in a bathroom or locker room. A.R.S. 13-3019 assigns criminal penalties for such conduct, regardless of how a person intended to use the photograph.
The statute sets up the expectation that a person should not secretly record someone else who is naked in the bathroom. Violations of that statute can support a finding of negligence in a civil lawsuit.
Several states also have recently enacted “revenge porn” statutes prohibiting the disclosure or distribution of photos or videos of a person in a state of nudity or engaged in sexual activity. In Arizona, the person in the image must have a reasonable expectation of privacy and the image must have been disclosed with the intention to “harm, harass, intimidate, threaten, or coerce” the person in the image. See A.R.S. 13-1425.
An individual who distributed a naked photo of a person in a private space such as a locker or bathroom intending to shame or harass that person could also be responsible for negligence.
While a criminal conviction could result in a person spending time in jail or paying fines or restitution, civil lawsuits provide compensation directly to the person harmed. In Ms. Mathers’ case, the woman in the picture Ms. Mathers took and published could seek money to compensate her for the injuries she suffered. Those damages are compensatory or actual damages and can include compensation for economic losses, physical and emotional injury and pain, and medical expenses. Compensation could include the costs of the woman’s efforts to remove the offending photograph from websites across the virtual world.
The woman could also seek exemplary damages, also called punitive damages. Punitive damages are meant to punish. Juries award punitive damages to send a message to the wrongdoer and to society more broadly, that the wrongdoer’s conduct will not be tolerated and to deter the wrongdoer and anyone else from engaging in the behavior that led to the lawsuit.
If Ms. Mathers engaged in the conduct of which she stands accused or if she is found guilty of the criminal charges, she is exposed to significant civil liability under several tort theories. Invasions of privacy are serious harms that expose perpetrators to serious civil and criminal consequences.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2016. All rights reserved.