A Facebook photo to rival David Lat's infamous mobile upload of post-operative cysts.

When you allow a photo to be taken, you should expect that it will be shown to others. That’s at the heart of a judge’s decision in the famous placenta photo case. Unless you’ve been stuck inside a womb, you must have heard by now about the placenta that almost aborted a nursing student’s career.

As previously noted, a Kansas judge decided that nursing student Doyle Byrnes shouldn’t have been kicked out of her program for posting a photo of herself posing with a human placenta to Facebook (at right). It was a move worthy only of de-friending by the weak-stomached.

The actual written decision in the case has come out, and there’s some interesting analysis in it, as noted by Eric Goldman at his Technology & Marketing Law Blog. It suggests that “photo-taking automatically means consent to widespread publication of that photo.” We imagine Brett Favre might object to that….

Judge Eric Melgren wrote:

[P]hotos are taken to be viewed. When [nursing student supervisor] Delphia granted permission to take the photos, it was unreasonable to assume that they would not be viewed. If the photos were objectionable, to say nothing of objectionable to the point warranting expulsion from the nursing program, then it would not have mattered whether the photos were viewed on Facebook or elsewhere. By giving the students permission to take the photos, which Delphia admitted, it was reasonable to anticipate that the photos would be shown to others.

In reading that, I couldn’t help but think of photos taken that really aren’t meant to be more widely viewed — such as the kind of self-portraits Brett Favre allegedly enjoys. Or consensual sex photos — like those taken in another Kansas court case. In 2009, Piper Peterson sued her ex-boyfriend for emailing sex photos of her to her friends and family and was awarded $55,000 by a jury. If the placenta photo logic had been applied in that case, there would have been no payday resulting from that digitally-transmitted sex photo debacle.

As Above the Law readers well-know, far less-juicy content has a way of slipping out into the world. Is it dangerous to set a precedent that any photo taken (or email written) could end up in the hands of a large audience?

Read on at The Not-So Private Parts.


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