A former Taco Bell executive, whose assault on a Southern California Uber driver was caught on camera and went viral in November, has now filed a lawsuit that raises questions about legal issues surrounding privacy.
In November the driver, Edward Caban, sued the rider, Benjamin Golden, for $25,000 citing damages to his person and his mental health. At that time Golden, who lost his job when the incident went public, apologized for his behavior.
Now, in a legal U-turn, Golden is suing Caban, for $5 million and alleges the video was recorded without his consent.
Does Golden even have a case?
Yes, legal experts told NBC Bay Area, but he’ll have to clear a number of legal hurdles in order to win.
“So a reasonable expectation of privacy is determined by the totality of the circumstances,” said Jud Campbell, Executive Director of Stanford’s Constitutional Law Center. “That’s a term in law that basically means, all the facts count. So whether it’s in a public space or not, whether there are more people around or not, whether you’ve been informed about a potential of recording or not, everything matters.”
What matters in this case specifically, says Campbell, is where the video was recorded, who else was around, and whether Caban made it clear to Golden that he was on camera.
California’s two-party consent law says a person needs to be aware of any recording of “confidential communication”.
Golden may or may not have been aware that he was being recorded, but that won’t matter if a court finds that he had no reasonable expectation of privacy in the first place.
Courts haven’t ruled on this kind of privacy issue before, and even Uber riders are conflicted.
“It is somebody else’s car. It’s not Uber’s car,” said Palo Alto resident Cam Huard. “So I don’t think you should expect any privacy when you sign up for getting an Uber.”
“I would not mind my privacy being invaded if it’s helping a greater good, or helping my life, or anyone in that situation,” added Karishma Jadeja.
Uber told NBC Bay Area that it doesn’t have a formal position on cameras in cars. The company said that drivers, who are independent contractors, have to follow local laws, and disclosure is on them.
Caban’s attorney, Rivers J. Morrell, says his client did tell Golden he was on camera. Regardless, he said it’s, “what [Golden] did on the video, not what he said on the audio, that got him in trouble.”
Morrell claims California’s two-party consent law doesn’t cover video, but Stanford’s Campbell says the answer to that question isn’t so black and white.
“There’s been one court in California that decided that silent video is a communication under the two-party consent law, and another appellate court decided that it wasn’t,” he said.
That divided court history further clouds Golden’s efforts in court.
If he clears the hurdles of privacy and video, a judge still may consider his behavior, which might render the entire conversation moot.
“I can see a judge going in the direction of saying, once you are aggressive towards a driver, the driver has the capacity to defend his or herself by engaging in audio/video recording,” Campbell said.
NBC Bay Area reached out to Golden’s lawyer but didn’t hear back.
While the outcome in the case is unclear, there are far more ways Golden can lose the lawsuit than win it.