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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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