It seems an ever-more common scenario: a death is captured in a photograph or video. The images are uploaded onto the Web. Within days, thousands, if not millions, of strangers have pierced their way into a family’s grief—gawking at the final moments of a life that were never meant to be public. It’s a scenario that’s ongoing for the family of Nikki Catsouras, the 18-year-old Orange County girl killed in a 2006 car crash—her mangled remains leaked onto the Web by two police dispatchers. Now it’s the latest battle for the family of Dawn Brancheau, the 40-year-old SeaWorld Orca trainer who drowned last month after she was yanked by her ponytail and held underwater by the six-ton whale she trained. The attack happened in front of a number of horrified tourists who’d attended a show just moments before.
Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death. Under Florida law, however, the tape would be made public once the investigation is complete—which could mean that any number of media outlets, bloggers, or unaffiliated interested parties could release the footage on the Web and elsewhere. “We see this a lot,” says legal scholar Dan Solove, an expert on privacy and the Internet, “because there are a lot of states that haven’t fully thought through what they do with their public records.”
Like the family of Nikki Catsouras, the Brancheaus have said that the public airing of their daughter’s death would only worsen their grief. And while the images do indeed appear to be fair game under Florida law, there is some precedent to prevent their release. The Brancheau family is working with the lawyer who represented Teresa Earnhardt, the widow of NASCAR racer Dale Earnhardt, who was killed in a crash during the last lap of the Daytona 500 in February 2001. In that case, Earnhardt’s widow petitioned a judge to seal her husband’s autopsy records, and Florida’s state legislature ultimately passed a law exempting the future release of such photos—along with audio and video—without the express permission from the victim’s next of kin.
The Brancheau video isn’t autopsy imagery, but it is an issue of free speech and privacy—and in many ways, say legal experts, the precedent set by Earnhardt could still apply. “Certain speech is not as valuable as other speech, and I think we need to say that,” says Solove, the author of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. “And while [the release of such imagery] may satisfy a morbid curiosity, I don’t think it really serves a great purpose otherwise.” That’s certainly what the Brancheaus hope the Florida legal system will see.
Editor's Note: An earlier version of this article incorrectly stated that the Orange County, Calif. Sheriff's Department was responsible for the Catsouras leak. It was the California Highway Patrol that was named in the lawsuit by the Catsouras family.