Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.
Question: Does the public have the right to film patients and the care they are receiving at an active emergency scene?
Answer: Your question involves a complicated intersection of laws that must balance two broad societal interests: the First Amendment’s right of the photographer to film in public, versus the individual patient’s right to privacy.
Despite the offensiveness of those who would exploit someone’s misfortune by photographing it, the public’s First Amendment right to film is strongest when it comes to filming governmental employees engaged in their public duties in public places. The cases that shape the law typically involve the filming of police arresting and perhaps subduing suspects. The societal importance of ensuring government accountability makes it unlikely that a carve-out for EMS activities would even be considered. Even if a legislature sought to restrict that right to film, it would likely be struck down as unconstitutional.
As a result, courts do not draw a distinction between filming police officers discharging their duties in public and firefighters doing their job in public. That is not to say that fire and EMS personnel are powerless to protect the privacy rights of patients. We can take steps to shield the patient from the public, although efforts to do so can come at the expense of patient care. Establishing exclusion zones might also be a possibility, but those zones would have to be justified based upon safety and/or operational needs, not concerns about filming.
Turning to patient’s rights, when people are in public, their right to privacy is quite limited. My apologies for the double negative – but people in public do not have a right to not be filmed. It is the corollary to the First Amendment right of people to film in public. We will refer to such photos as First Amendment-protected imagery.
Although a photographer has a First Amendment right to film, a patient being treated in public may have legal recourse should the photographer share the imagery. In particular, the tort of invasion of privacy is highly relevant. This tort has four separate parts, each of which can constitute an invasion of privacy:
- Intrusion upon the seclusion
- Appropriation of name or likeness
- Public disclosure of private facts
- Placing a person in a false light
None of the four invasion of privacy torts prohibit the taking of First Amendment-protected imagery. However, taking First Amendment-protected imagery and sharing it are two entirely different things. Two of the invasion of privacy torts – appropriation of name or likeness and public disclosure of private facts – would be the most likely recourse for the sharing of a patient-care photo.
Any commercial use of a facially recognizable image of a person without a person’s consent would be considered an appropriation of the person’s likeness – and thus an invasion of privacy. Such a photo could be used in a news article without the person’s consent, but if it were to be used for a commercial purpose without that person’s consent it would be an invasion of privacy. Volumes could be written on whether a particular use is considered news or commercial. Dwelling on the grey zone between news and commercial use can cause us to miss the fundamental principle: A photographer may have the right to film an emergency scene and take a photo of a patient in public, while at the same time be limited in how that image may be used without the person’s consent.
A second invasion of privacy tort, public disclosure of private facts, would likely provide the patient with even more protection. A photographer who shares a First Amendment-protected image could be held liable for an invasion of privacy if the imagery concerned a private matter that was not of legitimate concern to the public and its release would be highly offensive to a reasonable person. Once again, there is a lot to consider factually and legally, but the takeaway is the same: A photographer may have the right to film an emergency scene and take a photo of a patient in public, while at the same time be limited in how that image may be used without the person’s consent.
Two additional tort law causes of action may also be applicable in this situation: intentional infliction of severe emotional distress and negligent infliction of severe emotional distress. Intentional infliction of severe emotional distress would occur if the photographer’s sharing of the imagery was found to be extreme and outrageous, and intentionally or recklessly causes severe emotional distress to the victim. Negligent infliction of severe emotional distress (NISED) is a similar type of claim, requiring negligent conduct on the part of the photographer. It generally requires some sort of physical harm or close proximity of the victim to the harm, which may make it inapplicable in some jurisdictions. However, NISED may provide another theory to hold the photographer liable for sharing First Amendment-protected imagery.
The bottom line is that members of the public and the media have a First Amendment right to film in public. This right is particularly strong when it comes to filming governmental employees engaged in their governmental activities. Unfortunately, such activities may at times include governmental employees such as firefighters delivering emergency care to people – but the law governing photo-taking does not provide an exception for that scenario. Photographers do have a right to film an emergency scene.
However, everyone has a right to privacy. While a patient cannot prohibit others from taking imagery of them in public, the sharing of that imagery may constitute an invasion of privacy, resulting in liability against the photographer.
