A photograph of a man taken without his permission and posted online does not record or transmit “private discourse,” a Michigan Court of Appeals panel has held, affirming a grant of summary disposition for the defendants.
The plaintiffs said the defendants violated the criminal statute barring the use of a device for transmitting, photographing or eavesdropping in a private place and requested civil remedies. The trial court, however, concluded that posting the man’s photo did not meet the statutory definition of eavesdropping.
The appeals court agreed.
“Although defendants’ taking and dissemination of the unconsented photograph may violate MCL 750.539d(1) , this violation does not entitle plaintiffs to civil remedies under MCL 750.539h,” the judges wrote. “Because plaintiffs’ eavesdropping claim ‘is so clearly unenforceable that no factual development could possibly justify recovery,’ the trial court did not err by granting summary disposition in favor of defendants.”
The unpublished decision, Maritas v. Int'l Unions ( MiLW 08-107869 , 5 pages), was issued by Judges Kristina Robinson Garrett, Michael J. Riordan and Anica Letica.
West Bloomfield attorney Thomas M. Nunley of Nunley Wheelock represented the plaintiff and J. David Garcia of Young, Garcia & Quadrozzi Farmington Hills represented the defendant. Neither could be reached for comment.
Photograph
Underscoring this case is years of contentious litigation and competition between the parties, according to the appeals court opinion.
The plaintiffs in this case are Steve Maritas and the United Federation Law Enforcement Officers & Security-Police Benevolent Association, or UFLEOS-PBA. The defendants are International Unions, Security Police and Fire Professionals of America, or SPFPA, David Hickey and Dwayne Phillips.
In a 2022 deposition in a separate federal proceeding, International Unions representatives took a photo of Maritas without his knowledge or consent. The deposition was recorded orally and happened in a boardroom belonging to defendants’ counsel.
After the defendants published Maritas’ photo online and used it in materials sent to their union members, the plaintiffs claimed the defendants violated MCL 750.539d, and said they were entitled to civil remedies under MCL 750.539h for eavesdropping.
The defendants moved for summary disposition. The plaintiff, they asserted, failed to state a claim under MCL 750.539h because the statute only applies to eavesdropping, not taking and distributing photos.
The Macomb County Circuit Court granted the motion; Maritas’ photo did not constitute the “private discourse of others” because it was not a communication of thought by words.
Maritas appealed.
Not ‘private discourse’
The proper interpretation of MCL 750.539h is necessary to resolve this appeal, the panel said.
“While MCL 750.539d imposes criminal liability for recording, transmitting, photographing, or eavesdropping upon the sounds or events in a private place without consent, recovery of damages under MCL 750.539h is limited only to eavesdropping on a conversation,” the judges wrote. “Thus, the issue before us is whether taking and disseminating Maritas’s photograph constitutes eavesdropping under MCL 750.539h.”
The judges said eavesdropping is defined by statute as “to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse.” (Emphasis added).
And while “private discourse” is not defined in the statute, the appellate court said in 2003’s Lewis v. LeGrow decision that “its ordinary dictionary definition is communication of thought by words; talk; conversation; any unit of connected speech or writing longer than a sentence.”
In short, eavesdropping is limited to “overhearing, recording, amplifying, or transmitting the private, oral, or written communication of others without the permission of all persons engaged in the communication,” the panel pointed out.
“As a matter of common sense, the photograph of Maritas does not record or transmit oral communication, as it involves no spoken words,” the judges wrote. “Nor does the photograph depict any written communication by Maritas. Thus, although the photograph may be considered a visual means of communication, because it does not record or transmit the private discourse of Maritas, the trial court did not err by concluding that plaintiffs failed to state a cause of action under MCL 750.539h.”
Nor was the panel persuaded by the decisions the plaintiffs cited.
“Plaintiffs, relying primarily on dicta from unpublished caselaw, contend that photographs are communications that constitute ‘private discourse’ under the statute. The cases that plaintiffs rely on, however, are unrelated to the question of whether a photograph constitutes the private discourse of others under MCL 750.539a(2),” the judges said. “As such, they are inapplicable and unpersuasive.”
By “conflating ‘eavesdropping’ with ‘photographing,’” the plaintiffs’ interpretation failed to give meaning to the words in the statute, the panel noted.
“MCL 750.539d(1)(a) lists a series of prohibited actions ‘observing, recording, transmitting, photographing, or eavesdropping’ each of which must retain some independent meaning,” the judges said. “Adopting plaintiffs’ argument that photographing Maritas equates to eavesdropping would render portions of the statute surplusage or nugatory, which we always endeavor to avoid.”
The panel affirmed summary disposition for the defendants.
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