Monday, October 7, 2013

Court dismisses most of teen's suit for use of bikini-clad photo from Facebook in high school "Internet Safety" class

(Updated 10/9/13 - see end of post)

** Relevant documents: Complaint, Def. Renewed Rule 12(b)(6) MTD, Pl. Opp. to MTD, and Order **

A federal court on Sept. 30th granted a motion to dismiss (in large part) a Georgia teen's lawsuit for multiple causes of action arising out of a Technology Instructor's use of a photo of her he obtained from her Facebook page; the photo was used in an "Internet Safety" class to illustrate that what you post online does not go away. The powerpoint the instructor used included the teen's name on a slide with her picture (the picture was of her in a bikini standing next to Snoop Dog (aka Snoop Lion)). The case is Chaney v. Fayette County Public School District, No. 13-CV-89-TCB (N.D. G.A. Sept. 30, 2013).

The powerpoint slides are below (I cropped out Chaney to prevent further reproduction) - 

The court juxtaposed the instructor's intention with Chelsea Chaney's as follows:
The presentation was designed to illustrate the permanent nature of social media postings and how those postings could be embarrassing if published by third parties. Part of the presentation included a slide of a cartoon depicting a daughter approaching her mother about the mother’s Facebook page from years past, which listed the mother’s hobbies as “body art, bad boys, and jello shooters.” Chaney alleges that the obvious implication of this cartoon was the mother was humiliated by this Facebook posting, which according to Chaney labeled her as a “sexually-promiscuous, anti-establishment[] abuser of alcohol.”
Chaney alleged in the suit that the "unauthorized" use of her picture "violated her constitutional right to privacy under the Fourth and Fourteenth Amendments as well as several rights afforded her by state law." She sued the school district and the instructor in their official capacities - these were the claims dismissed by the Sept. 30th order above - and the instructor in his individual capacity (that claim has not been dismissed). 

The New York Daily News wrote a piece about this case in June: Georgia teen wants $2 million after school uses Facebook photo without permission. From the heading:
When bikini-clad Chelsea Chaney posed next to a cutout of Snoop Dogg during a family vacation, she had no idea that the photo would be shown to hundreds of strangers at a Fayette County Schools district seminar. An administrator used the photo to demonstrate the dangers of posting to social media.
The court found Chaney's Facebook setting allowing friends of her friends to see her pictures to constitute disclosure under the third-party doctrine, eliminating her reasonable expectation of privacy. The court, addressing the Fourth Amendment claim, stated:
Chaney contends that her privacy-setting choice of “friends and friends of friends” was “semi-private” and that her Facebook page was accessibly “only to those people she had specifically approved.” Thus, she contends that the District improperly searched her Facebook page and stole, i.e., illegally seized, her picture. However, Chaney fails to acknowledge the lack of privacy afforded her by her selected Facebook setting. While Chaney may select her Facebook friends, she cannot select her Facebook friends’ friends. By intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends). 
“The Supreme Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
...Chaney surrendered any reasonable expectation of privacy when she posted a picture to her Facebook profile, which she chose to share with the broadest audience available to her. Thus, Chaney cannot show that society would be willing to recognize her expectation of privacy as legitimate.
The court also dismissed Chaney's argument that her outfit (bikini) and that she was a minor at the time had any bearing on the analysis.

The court then went on to the Fourteenth Amendment due process claim, noting that "zones of privacy" have been judicially recognized, but "[n]owhere in these protected areas may [appellant] find a constitutional right to be free from public embarrassment or damage to his reputation." The court pointed out that Chaney claims did not rise to a "constitutional magnitude" and instead "most appropriately arise under state tort law."

The court then proceeded to find the two defendants in their official capacity immune from suit, regardless, which would have defeated the claims without the preceding analysis.

Thus, the school district's (and the instructor's) Rule 12b(6) motion to dismiss was granted for all causes of action against them in their official capacities.

Side note: this was clearly a terrible judgment call on the instructor's part and by the school district (since it appears they OK'd it). That said, it's hard to argue the instructor didn't get his point across.

The following is an interview with the plaintiff Chelsea Chaney:

Update 1:
A few things:
(1) I know it appears silly to crop out Chaney in the Powerpoint considering the image of her and Snoop Dogg (Snoop Lion) is the first thing that Google returns when you search for her name (and is included in the public filings for the case), but Venkat's write-up (see below) echoed my uneasiness about posting it ("With some reluctance, we're sharing a link to a page where you can find the photo.")

(2) I found it odd that Chaney's lawyer chose not to address the state tort claims in his brief in opposition to the motion to dismiss, even if sovereign immunity was a slam dunk

(3) Derek Black chose an interesting title for his write-up about the case on the Education Law Prof Blog: "Facebook Users Beware: The Principal Might Not Punish You, But He Can Ridicule You."(link below). A few thoughts on his use of the word "ridicule" (purely academic, not to criticize):

Can school district employees really "ridicule" you? The answer is not unequivocally yes because if the ridicule arises from a discretionary act, and the student can prove "actual malice," the claim would not be barred by the Georgia Tort Claims Act (or analogous statutes) providing immunity to schools/public officials/etc. (Black points this out at the bottom of his write-up). More importantly, though, is "ridicule" really what happened here? I don't see any evidence the use of the photo was to "mak[e] fun of someone or something in a cruel or harsh way." As I noted, there was an educational message tied to the use of the photo (admittedly, delivered in a ill-conceived way); the photo was not used to "ridicule" or opine on a non-pedagogical point (for example, to attack Chaney's choice of rapper, clothes, or lifestyle), and at least to me, that is a meaningful distinction. The take home message from the case is much more that Facebook users should worry about the impact their social media personas could have on their lives (i.e. striking the correct balance of privacy and communicative freedom in an interconnected and ever evolving technological age), and much less that they should beware of principals snooping for photos with which to "ridicule" them (a small, downstream derivative of the larger issue).

Other write-ups:
Venkat Balasubramani, Organizing an “Internet Safety” Presentation? Don't Troll Through Students' Facebook Accounts Looking for Bikini Photos

Molly DiBianca, No Privacy Claim for Use of Student Facebook Picture

Derek Black, Facebook Users Beware: The Principal Might Not Punish You, But He Can Ridicule You

Comments from Reddit about this story

Some of the original coverage when the suit was filed:
CNET, Student sues after school uses Facebook bikini pic in seminar

Cosmopolitan, How This Bikini Photo Sparked a $2 Million Lawsuit

Huffington Post, Chelsea Chaney Sues Georgia School District For Using Facebook Photo Of Her In A Bikini

Policy Mic, School Uses Student's Bikini Picture to Promote Social Media Safety


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