MANAGED CARE August 2002. ©MediMedia USA
It seems some folks have been publishing on the Internet pictures of women visiting abortion clinics. Is this constitutionally protected journalism? Or a violation of privacy?
Everyone understands that this tactic is intended to harass and intimidate people connected with abortion activities. Abortion opponents view this as nonviolent action aimed at discouraging an abhorrent social practice. Supporters view it as a form of assault. At one Planned Parenthood site, the clinic attempted to conceal arriving patients behind a privacy fence. The photographers then brought stepladders. The clinic responded by providing escorts with umbrellas.
My current concern isn't with the ethical status of abortion, but with medical privacy. Would it be permissible for someone to publish pictures of me going into my optometrist's office? How about a VD clinic? (Hypothetically.)
We enjoy wide latitude for public expression. The umbrella of "journalism" permits almost anyone to publish a picture of almost anyone doing almost anything, without the consent of the subject. But freedom of the press competes with other values, like privacy. Your doctor can't publish your medical record on the Internet. I think this also applies to your doctor's appointment book.
HIPAA (the Health Insurance Portability and Accountability Act) has focused needed attention on medical privacy. Despite its enormous implementation difficulties, HIPAA deserves praise for undertaking the heroic ethical task of setting standards for how information should be protected. It addresses information not only written and stored, but spoken as well. And, going beyond codes of professional responsibility, it creates duties for nonprofessionals.
If I published pictures of my patients on the Internet without permission, I would expect criticism. This applies to my staff as well. The offense would be weaker in family practice, where the scope of possible diagnoses is so broad that there is little to infer from the mere fact of a professional relationship. (And, you can't even presume that, from just walking in the door.) But the offense would be serious if my office specialized in HIV, alcoholism, or Alzheimer's.
Antiabortion photographers and other spectators are not subject to the medical ethic of confidentiality. How much license does this allow them to publish medical information that doctors could not? Never mind Gary Hart and Princess Diana. What legal protections do ordinary people have against aggressive medical journalism?
The Fourth Amendment pertains to government violations of privacy. The First Amendment would tend to protect the publication of patient photos, as long as they were legally obtained. There are few criminal statutes relevant to taking pictures of people on the street, or on private property visible from the street.
In civil law, however, there are four recognized privacy torts that might apply in this situation. Keep in mind that there is a subtle but important distinction between taking a photograph and publishing it.
- Intrusion. Intruding upon the solitude or seclusion of another person.
- Public disclosure of private facts. Publicizing private information about someone when it is not of legitimate concern to the public (even if true).
- False light in the public eye. Publicizing a highly offensive false impression of another.
- Appropriation. Using another's name or likeness for benefit or advantage without consent.
"Intrusion" is when a department store puts a security camera in the dressing room. Or when a Peeping Tom films you in the shower. To apply to the antiabortion photographers, it would have to be argued that a patient has an expectation of privacy walking from the street to the clinic. This wouldn't sell if she were walking into a grocery store, or even a hospital. But, for an abortion clinic (or TB or drug detox), I would argue that her presence reasonably implies a diagnosis, which constitutes private medical information. A "reasonableness" analysis would ask how "private" the clinic actually was — whether there was a neon sign over the door, and so on — or whether an effort had been made at discretion.
The parking lot and walkway are not areas where people would normally expect seclusion from public view. And if the waiting room has a window, there is probably no expectation of privacy there, either. But the case changes when you put blinds on your window. Climbing a stepladder to defeat a privacy screen makes a stronger case for intrusion.
Imagine photography inside the clinic. Where would this not invade privacy? If someone snapped some photos in the waiting room and stopped for a shot of the sign-in sheet, wouldn't it also be offensive ? Except in settings (such as AA) where formal privacy covenants are honored, there is no explicit norm about people respecting each other's anonymity in the waiting room. But a waiting room photographer would violate a sense of propriety in most people, and should be liable for it. I think the guy on the stepladder is committing a similar intrusion.
If the mere fact that I am a patient constitutes "medical information," then the abortion Webcam violates a medical ethics confidentiality standard that HIPAA has just formally criminalized. And HIPAA's penalties apply to nonprofessionals as well as health care providers.
This weakens the voyeur's defense that the patient "waived" privacy by the act of approaching the clinic entrance. I would argue that her privacy right (at least regarding publication of photos) was fully active at that moment.
"False light" is like defamation. It's when someone displays your image in a context that suggests — falsely — that you are guilty of some obnoxious behavior. An example of this would be if a newspaper printed a picture of an honest doctor in an article on Medicare fraud. The defense against a false light claim is that the perception is true. If a woman is actually going to an abortion clinic for an abortion, she can't file a false light claim over a picture of it. On the other hand, if she's just delivering pizza or accompanying a friend, she might have a claim.
"Appropriation" applies when someone makes money from your picture without permission. Here, the law treats public figures differently from ordinary folks. It's not necessary that a profit be made to prove appropriation.
For example, it might be appropriation if someone simply used your picture to advertise his or her business. Even not-for-profit organizations use images to solicit donations and for publicity. These uses might be benefits to the user that require consent of the subject. I would argue that Web sites that publish these photos enjoy benefits that require informed consent.
My concern is with the privacy of medical records — including the nature of our visits — from unauthorized disclosure by providers, insurance companies, or journalists. I believe that the principles embodied in HIPAA can, and should, apply to certain actions of onlookers who involve themselves in patient care.