Media Law in the News IV

http://www.nydailynews.com/news/national/mathers-lawyers-push-no-jail-time-snapchat-body-shaming-case-article-1.2974758

Part I - Summary of Issue 
Former Miss May 2014, Playboy model, Dani Mathers is involved in an invasion of privacy case. The case centers around a Snapchat photograph of a nude elderly woman that Mathers took and uploaded in a gym locker room at LA Fitness. Body shaming the woman, Mathers shared the image with her followers on Snapchat with a caption reading, "If I can't unsee this then you can't either", along with a selfie. She has pleaded not guilty to an invasion of privacy charge that carries up to six months in jail. Mathers claimed that she accidentally posted the photo by pressing the wrong button, never intending to share it publicly and that she deeply regrets her actions, acknowledging that body shaming is wrong. Her lawyers are fighting for a no jail diversion program. 

Part II - Legal Questions Raised 
Mathers is being charged with an invasion of privacy misdemeanor. Specifically violating the tort of intrusion. Intrusion involves violating a person's reasonable expectation of privacy. Defined as the intentional invasion of a person's solitude or a person's private concern. Intrusion may be physical such (for example, walking into someone's home uninvited) or technological (for example, hacking iPhone). Unlike libel intrusion has nothing to do with publication but only with how the information/content at hand was obtained. Did the woman photographed have a reasonable expectation to privacy in a gym locker room? By photographing and uploading a picture of the woman did Mathers violate the woman's reasonable expectation to privacy? What category of space is a gym locker room? Is it a private room? 

Part III - Relevant Doctrine/Precedent 
In the plaintiff's case for intrusion one must prove that the plaintiff had a reasonable expectation of privacy and that the intrusion was highly intrusive and highly offensive to a reasonable person. In public and quasi public places people have no reasonable expectation of privacy. Generally in such places there is no intrusion if you take a photograph of anything you see. However, people do have a reasonable expectation of privacy in private places, including homes, private offices, hospital rooms, etc. The area in which Mather is likely to be found guilty is video voyeurism law. Such laws dictate that it is illegal to secretly make videos or photos of a person in private places, such as a bedroom or bathroom. Adopted in WA in 2008, this law has also been adopted in California, the jurisdiction in which the case is being dealt with. It would seem that based on her actions Mathers did violate the woman's reasonable expectation to privacy, as California Penal Code section 647(j) prohibits non-consensual viewing, filming, photographing, videotaping, or recording of persons in private areas, where the person has an expectation of privacy (such as someone using the bathroom or in a changing room). 

Part IV - Conclusion 
As the gym locker room is deemed to be an area in which a person has a reasonable expectation of privacy, akin to a changing room, in addition to the fact that Mathers took the photograph without the woman's consent, it would seem that she is in fact guilty of invasion of privacy by intrusion. The argument that she did not intend to do so seems incredibly weak, as the steps one would take to produce the snapchat in question (add a caption, make the caption big, add a filter) involves more than one step and pressing one wrong button. Considering the purposeful process it would require to take and produce such a photo it is highly unlike it was accidental. Additionally, whether or not Mathers intended to share it is irrelevant as this is not a libel case. Disregarding her intent of publication focusing only on the way in which the photograph was obtained it seems clear that Mathers' actions are in violation of video voyeurism laws and that she is in fact guilty of an invasion of privacy by intrusion.