There may be some interesting tort questions raised by a new Internet sensation created by former flight attendant Shawn Kathleen, who has started a movement to shame passengers who act badly on flights. Passenger Shaming has taken off with travelers on Facebook and Instagram.
Her first blog, Rants Of A Sassy Stew, was a huge success and she decided to start to post pictures from people sticking their feet over seats to men going shirtless to a sink filled with urine. Here sites now have 45,000 and 60,000 followers respectively.
The question is whether passengers can sue over the images. These are taken in a public space but include passengers who are sleeping and do not expect to find their images plastered over the Internet. Most of the pictures make it difficult to identify the person, but there could be some serious claims of injury. First, airlines may have rules against photographing other passengers. Second, passengers could claim an expectation of privacy, though it could be a difficult claim in such a public setting. As a general matter, you do not have such protections in public spaces. We recently saw such a dubious claim filed by a sleeping fan at a baseball game.
It is possible to make an inclusion claim based on a public encounter but it is difficult. That was the case in Nader v. General Motors Corp., where Ralph Nader was able to show that GM hired detectives to follow him closely. One such instance involved looking over his shoulder at banks to read his bank slips, which was found to be an intrusion upon seclusion even though it was a public place.
The shaming pictures are intended to embarrass or expose the passengers. However, they displayed themselves in a general area and often intruded on the immediate space of other passengers. Yet, a plane is not public place like a park. It is a place of private business, albeit an area of general observation. Some of these pictures could cross the Nader line in getting too close to the subject or intruding into an area where there may be a greater expectation of privacy.