Cautionary Tales: When The Law Protects Unethical Creeps

Chaney_Chelsea

Two recent court rulings demonstrate how the law often cannot punish purely unethical conduct if it falls in the cracks of legal language and definitions. When that happens, however, it is incumbent upon the rest of the culture not to allow an Ethics Dunce, or worse,to escape without proper identification and condemnation.

Case A: Curtis Cearley

Director of technology services for the Fayette County (GA) school district.

Fayette County high school student Chelsea Chaney used her Facebook page to post a photo of herself wearing a bikini and standing next to a life-size cardboard cut-out of rapper Snoop Dogg holding a can of Blast, the caffeinated alcoholic beverage he promotes. Although it was posted for the student’s friends, Cearley saw it, and used the comely photo in a  presentation at a public forum on the risks of sharing potentially embarrassing personal information on social media. He also used her name, identifying Chaney at the forum which was attended by parents, faculty and  students who attended school with her. He never alerted her, or asked her permission to use her photo as a “Don’t be like Chelsea!” example. The forum was titled “Once It’s There, It’s There to Stay.”

Horrible. This is a pure Golden Rule violation by Cearley, unfair, cruel, thoughtless, mean and intentionally  harmful to a minor, no less:

“Hubba Hubba! This is perfect!! I’ll show what can happen when you post photos on Facebook by taking this chick’s photo—boy, she looks  hot! Mmmmlllllwrasshamammaaaahhhhh!!—and using it to humiliate her. See, kids? That’s what can happen…especially when people like me are around to make it happen!”

But when Chelsea sued—she’s in college now—the judge ruled that she had no reasonable expectation of privacy, and thus exploitative, unethical jerks like Cearley can take her photos and use them in whatever cruel and twisted way they like, because she voluntarily placed them in the public domain:

“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….Chaney not only voluntarily turned over the picture to her Facebook friends, but she also chose to share the picture with an additional audience of unknown size, likely comprised of people Chaney did not know, subject to contiuous expansion without Chaney’s approval.”

Yup. That’s the law, all right. It does not make what was done to Chelsea Chaney any less despicable; it just means he can’t be sued for it. If the County doesn’t fire this guy, and parents don’t make sure that they do, I will not think well of Fayette County.

Case B:  Zhengzhu Liu

Former executive for Phoenix Satellite Television US, Inc.

He was apparently a serial sexual harasser, and has been fired for it. But a federal district court has ruled that one of his victims, Lihuan Wang, 26, cannot make a sexual harassment claim under the New York City Human Rights Law, because she was an intern, and as the relevant statute is written, the lack of compensation renders her unable to meet the requirement of employee status under the statute.

The alleged harassment included ongoing social and sexual overtures and physical touching by Liu, a bureau chief who supervised Wang’s work. Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”

You read right: not only do they not get paid, as a special bonus, interns also have no recourse if their supervisor or anyone else tries to use them as a workplace sex toy. I bet Bill Clinton loves this decision!  Of course, the fact that a loophole in the law lets you get away with abusive, disrespectful and unprofessional workplace behavior doesn’t excuse or mitigate how unethical it is in any way. Liu, like most harassers, was not very careful about who he tried to molest, and eventually hit on a paid employee, hence his demise.  Good.

Obviously the laws need to be fixed, and legislators are promising to do that, in light of this case and the anger it is bound to ignite. Meanwhile, Wang is traumatized and has move back to China from the U.S.

The law will never  to take the place of ethics, or successfully persuade unethical people to think and act with fairness and respect toward others. That’s why placing our trust in laws to build an ethical culture and society is doomed to failure. By the time we have to make a law to address pervasive unethical conduct, the battle is mostly lost.

______________________________
Sources: Today’s Workplace, Daily Report, New York Daily News

Graphic: Daily Report

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.

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13 thoughts on “Cautionary Tales: When The Law Protects Unethical Creeps

  1. But when Chelsea sued—she’s in college now—the judge ruled that she had no reasonable expectation of privacy, and thus exploitative, unethical jerks like Cearley can take her photos and use them in whatever cruel and twisted way they like, because she voluntarily placed them in the public domain:

    She should have sued for copyright infringement…

          • I would argue that the wording “you grant the social media sites a license to use your photograph anyway they see fit for free AND you grant them the right to let others use you[r] picture as well!” suggests an actual agreement between Facebook and the other party.

            By which I mean that yes, Facebook can use your picture in an ad campaign, and if *I* contacted Facebook they could allow me to use the picture for MY ad campaign.

            So Facebook could use the picture of the blonde hottie for their “Join Facebook and meet chicks like this” market push, and they could agree to let Snoop Dogg use the picture for his “check out the hottie that drink this shizzle” ad blitz, but my taking the picture for my “buy my line of red swimwear, look how hot this chick is, don’t you want to look this hot” campaign would leave me open to a lawsuit because there was no agreement between Facebook and myself.

            I find further support for this belief in the line “This means that Facebook can license your content to others for free without obtaining any other approval from you!”, as I doubt Cearley obtained a license from Facebook.

            Absent an agreement between Facebook and Cearley, Cearley lacks proper authority to use the image.

            The ToS and EULA for Facebook does not, no matter what people say, give you carte blanche to take anything you see on Facebook and use it as your own. If that were true, the lawsuit against Sarah Palin’s SarahPAC by North Jersey Media Group Inc. for having used the image on 9-11 would be utterly dead in the water (which it will be anyways, but because it wasn’t actually used for fundraising, not because NJMG had no claim on the image).

            • It’s a great theory, but as my old property law prof used to say, “I wouldn’t take it on a contingent fee basis.” This has been litigated all over the place. It is one reason why Facebook isn’t used as a true blog…you can’t copyright the original content. And if Facebook has established that it won’t object if you re-publish a photo (from one of its users’ photos, then they have, in effect, waived its copyright, if it ever had one.

  2. Cearley may be a jerk, but he’s a jerk with a point. He embarrassed a student with her own posting and was cleared by the court for using it, without so much as an apology or a question. Brute force technique.

    • Not MAY be a jerk, IS a jerk, and if I were the girls father, he’s be a jerk with a big, furious problem. The idea is not to post such pictures if you care about what might happen to them not because you should worry that an idiot with power will intentionally embarrass you just because he can, to use your unnecessary misfortune to warn others. There isn’t an ethical system in the world that would justify that. He could have 1) asked her, 2) blocked out her face, 3) used someone nowhere near that school.

  3. I agree with everything you said here, but all I can think is “Damn, I wish I had taken some photos of myself in a bikini at 16, because NO ONE would want to see me in one now.” She’ll look back at this in 20 years and say yes, that guy was an ass, but she’ll wish she still looked like that. 🙂

    • It’s everywhere now, and we can’t finger the creep effectively without it. I considered that, as I always do. One factor: there’s nothing intrinsically humiliating about the photo, and whatever embarrassment the young woman has suffered is probably “in the books.” When he grabbed and exploited it, it was quasi-public—now, thanks to him, it’s completely public.

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