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Death and Dying - Film at Eleven. The Narrow Scope of Right to Privacy in New York

By Rosemarie Tully and Diane Krausz

In New York, your right to privacy dies with you, but should your consent be required for the filming of your death in the hospital emergency room? In the northeast, a variety of well-known hospitals regularly allow filming of emergency room activity along with commentary from the treating physicians and interaction among medical staff, patients, their family and friends - for television broadcast. Oddly enough, it seems that most subjects are open to having their real-life traumas splashed across the screen, but what of those patients that are not competent to give meaningful consent or die in the process? Is consent even required?

Thanks to a recent New York Times headline about the Chanko family's lawsuit regarding an episode of "NY Med," we will all be more aware of the possibility that our own dying on the table may be filmed and broadcast without our consent.

Mark Chanko, then 83, was rushed to New York Presbyterian after being hit by a truck while crossing a Manhattan street late one night in April 2011. Dr. Sebastian Schubl (known on "NY Med" as "Dr. McDreamy") was the supervising treating physician. When Mr. Chanko's adult children, his daughter-in-law, and his wife, Anita, arrived at the hospital, they were ushered into a separate room to wait for news about Mr. Chanko. Unable to save Mr. Chanko, Dr. Schubl delivered the sad news to the family. The grief-stricken family left the hospital unaware that Mr. Chanko's demise in the operating room and the family's reaction to the news of his death had been captured on film.

Over a year later, in August 2012, Anita Chanko tuned into to "NY Med" and saw the episode in which her husband dies. Although his face is blurred out and he is not otherwise identified, Mrs. Chanko recognizes his voice and body image and hears her husband asking Dr. Schubl, "Did you speak to my wife." These same words are flashed on the screen in big letters. Mrs. Chanko describes the episode: "...my husband is heard moaning. Bloody sheets are waived in front of the camera. My husband's blood is being displayed to me. Dr. Schubl then discusses with an unseen cast member cutting off a leg, narrates my husband's deterioration and asks, 'Anybody have a problem with calling it?'" She concludes with, "My husband has died before my eyes." Chanko v American Broadcasting Companies, Inc., et al., 122 A.D.3d 487, 997 N.Y.S.2d 44 (Anita Chanko aff.)

The Chanko family sued the network, American Broadcasting Companies, Inc. (ABC), the hospital, and the treating doctors, with Mrs. Chanko as plaintiff individually and on behalf of Mr. Chanko's estate. Among the claims were violations of §§50 and 51 of the New York Civil Rights Law, the right to privacy statute.

Regarding the right to privacy claims, defendant ABC moved to dismiss the complaint for failure to state a cause of action, arguing that (i) New York's right to privacy statute does not apply to news programs, and (ii) any claim that Mr. Chanko may have had died with him. In its decision dated November 18, 2014, the Appellate Division, First Dept., agreed. Chanko, supra.

"NY Med" is an ABC News documentary program and is described as real-life show that "... sheds light on the inner workings of hospital life by educating viewers about how different medical conditions are treated, how doctors make decisions about medical options, and other features of a workplace that routinely confronts life-and-death situations. ... there are successes and there are failures." Chanko, supra (ABC Brief, pp. 1, 2) It should be noted that upon the Chanko family's complaint to ABC after the initial broadcast, ABC responded with deference to the family by releasing a second version of the episode without the offending segment. The initial broadcast version is no longer available to the public. Chanko, supra (ABC Brief, p. 4)

In New York, meaningful discussion of the "right to privacy" begins in the early 1900s with Roberson v. Rochester Folding Box Co., 171 NY 538, 64 NE 442. Abigail Roberson, then a teenager in Rochester, NY, complained that the Franklin Mills Company printed about 25,000 posters using her photographic portrait (head and shoulders in profile) along with the words, "Flour of the Family" above "Franklin Mills Flour" below, framing her image. The posters were circulated among warehouses, stores, saloons, and other public places for display, including some in Rochester where Abigail's friends and acquaintances recognized her image. With her good name tarnished by these advertisements, Abigail suffered great humiliation, distress, and nervous shock requiring treatment by a physician. She sought $15,000 in damages and an order enjoining the Franklin Mills Company from further use of her image.

The lower courts found for Ms. Roberson, noting that if her beauty was of such value as a "trademark or an advertising medium, ... it is a property right which belongs to her." Roberson v. Rochester Folding Box Co., et al., 32 Misc. 344 (Sup. Ct., Monroe County, 1900); 64 A.D. 30 (4th Dept., 1901). This new-found property right was promptly extinguished on appeal. The New York Court of Appeals, by a 4-3 vote, determined that such a property right had no foundation in the law and would not only result in widespread litigation, but "litigation bordering on the absurd." It posited that once established as legal doctrine, the "right to privacy" would not be confined to restrain the publication of likeness, but would include the "publication of a word picture, a comment upon one's looks, conduct, domestic relations or habits." The right to free speech and public discourse would surely be threatened. While the Court of Appeals in Roberson would find no remedy for Abigail, it suggested that the legislature might provide distinctions for nonconsensual use of one's image for advertising purposes.

The New York legislature responded by enacting a privacy statute, making it the first state to establish a right to control the use of one's name and image, albeit a very limited right and one reserved only for the living. Civil Rights Law §50 makes it a misdemeanor to use a living person's "name, portrait, or picture" for advertising or trade purposes without having first obtained written consent of the person. CRL §51. provides the teeth for a civil action allowing the aggrieved victim to maintain an equitable action to prevent and restrain unlawful use of her or his image and sue and recover damages for any injuries sustained. The language of §50 remains unchanged from its 1909 version. CRL §51 was amended in 1995 to include the use of a person's "voice" in certain circumstances.

Soon after Roberson and the enactment of the statue, the doctrine of the newsworthy exception evolved: if the use of a person's name, portrait or picture has a real relationship with the context of the newsworthy item -and- is not used for trade purposes or an advertisement in disguise, then there is no violation of the statute. The real relationship requirement is notoriously broad, and even though the medium (e.g., magazine, television program, or documentary) contains advertising or has the attendant purpose of increasing audience or revenue, such use will not be deemed to be for trade purposes, and therefore not actionable. Messenger v. Gruner + Jahr Printing & Pub., 94 NY2d 436, 727 NE2d 549 [2000] The "newsworthy" exception has been expanded over time to include matters of public interest, all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general. See Lemerond v Twentieth Century Fox Film Corp., No. 07 Civ. 4635, 2008 WL 918579, (SDNY Mar. 31, 2008) While all this may leave us with the uneasy feeling that the notion of privacy and the right to be left alone is just about non-existent, when we consider the role of social media in our lives and how we, as publishers of a sort, consistently expose ourselves and others (without their consent) to the world at large, the Roberson court's concern for free and unhampered public discourse has merit. Yet, there is something about death and dying that feels sacred, and we are disturbed that Mr. Chanko's last moments were filmed without his or his family's knowledge and then broadcast on national television.

While there is no relief for the family members under New York Civil Rights Law, and there would likely have been none for Mr. Chanko, had he survived, Mrs. Chanko remains undeterred and an appeal is planned. "If there's no applicable law, there most certainly should be," she told the New York Times. " I'm willing to just pursue it all the way. Why shouldn't there be a law against this kind of thing?"

As it happens, the New York Assembly is taking a look at modifying §51 to include a private right of action in the instance of unlawful surveillance and has introduced a bill to "allow victims of unlawful surveillance ... a civil cause of action to seek injunctive relief and damages when their privacy is violated." 2015 New York Assembly Bill No. 3576 While the purpose of the bill seems to be geared toward surveillance of a sexual nature, the publicity of the Chanko case may help shape its ultimate form.

In the meantime, you might want to consider adding a "do not film" clause to your healthcare directives, as dying in the E. R. in New York is not the private matter many of us may have assumed. It will not likely change the result vis a vis your right to privacy in New York, but at least you will have gone on record with your wishes.


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