Can I sue for being exposed to an obscene photo?

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Can I sue for being exposed to an obscene photo?

.I ordered some prints of digital photos from a large national retail store chain. When I picked up the prints, they gave me a CD containing their software to help organize and upload photos for future prints. When I put the CD in my computer it showed a gallery of photos that weren’t mine but are on the CD. Most of the photos are of a family vacation but one is a young naked woman exposing her privates to the camera in a close-up shot. I am an adult male but was disgusted and shocked by this photo.

Asked on August 4, 2011 Wisconsin

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

No, you cannot sue for this, though you certainly can complain to the local store's owner, the national corporate office, and/or the Better Busines Burea. Here's why you can't sue:

1) You haven't suffered any injury that is cognizable. Generally, the law compensates for physical injury or damage to property, economic loss or cost, physical pain and suffering, loss of opportunties, etc. Being disgusted and schocked is not something the law provides compensation for, and there is no right to *not* be disgusted and shocked.

2) While in rare cases, there is recovery for intentional infliction of emotional harm:

a) The infliction must be intentional, or at a minimum shockingly, reckless, grossly negligent. Having the wrong photo on a CD was very likely a simple mistake (i.e. ordinary negligence) and not intentional or grossly negligent.

b) Even if you were disgusted and shocked, the average reasonable male wouldn't be--this would not be considered the level of emotional harm that allows recover (if indeed, it would be considered "harm" at all--in terms of emotional harm, the test is not whether a particularly sensitoiiove person is injured, but whether the average person would be).

c) Even if you could somehow recover something for your shock and disgust, what you can recover is comensurate with the harm. Given how many indecent or pornographic images are casually available in our society--see, e.g. "True Blood" or any R-rated film--it would almost certainly be held by a court that the "harm" of seeing a single picture of a naked woman's privates was so minor that you could not recover enough money to even begin making a lawsuit worthwhile.


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