The Maryland Attorney General’s office has issued a memo to EMS providers and personnel stating that photos taken of patients who are identifiable constitutes “individually identifiable health information” under HIPAA, the release of which through any means (including social media) is a violation.
The memo was dated May 30, 2013 and began being circulated to local and regional EMS providers this week. It was issued by Assistant Attorney General Sarah M. Sette.
Quoting from the memo, HIPAA applies to “photographs of patients taken by EMS providers if the patient can be identified, whether directly through their features, or indirectly through unique clothing or a license plate or the nature of the particular injury or motor vehicle crash or event. Similarly, a photograph of a medical record such as EKG, or a unique injury or treatment, might also be susceptible to being linked to a specific patient.
“Accordingly, distributing such a photograph, whether via email, by posting it on Facebook, or through other media, may be an unauthorized disclosure of protected health information and violate HIPAA.”
The memo also discusses the penalties that violators face, including fines of up to $250,000 and 10 years in prison, and the fact that Maryland state law governing medical confidentiality, Health General Article, Sections 4-30 l, et seq., is also applicable and carries fines of up to $250,000, imprisonment, and possible civil liability to the victims.
For those concerned, neither HIPAA nor state medical confidentiality laws prohibit the taking of photos, dash or helmet cam video, or other types of imagery. What is required is that any imagery that shows an identifiable patient must be treated as part of the patient’s confidential medical record.
For those currently using my digital imagery and/or social media policies… you are protected… no need to change a thing.
I received a question that was posted as a comment to one of the stories on firefighters interfering with the public’s right to cover news worthy events. I have paraphrased what was asked… and turned it into today’s burning question:
Is safety a legitimate reason to exclude the press from parts of an emergency scene? Excluding the public, yes, but I don't think safety should be grounds for excluding the press. According to all of the PIO classes I have attended safety cannot be used as a reason to exclude press. PIO's are being told that the only exclusions allowed for the press (leaving out the question of "who is the press") are (1) private property (trespass), (2) interference (reasonable work zone) and (3) exclusion from a crime scene.
Not that I don’t believe you, but is there a statutory provision or case law that you are using when you tell us we can exclude the press because of safety concerns?
Answer: It sounds to me like members of the press may have been involved in teaching your PIO classes, which is entirely understandable. They have an invaluable perspective to share with the fire service – and we need to listen. However, along with that perspective comes a certain bias in favor of the media that the law does not share.
So let me get this straight: according to these “instructors” we cannot deny the press access to a location based on safety concerns? Seriously? That means I could be advancing a hose line into a structure and have a news camera team along side of me? I cannot order them to stay outside? Or entering a hazmat hotzone in level A we might find a cameraman sauntering in? And we’d have to rely on the crime scene or work zone exclusion? I’m not even sure we can enforce the trespass exclusion – that is up to the property owner. What if the property owner gives the news team permission to trespass? Seriously? Your instructors told you we cannot stop the press over safety concerns?
Let’s assume your “instructors” are correct (they are not but play along). The Supreme Court has made it abundantly clear – the right to film and cover the news is not limited to the media – it extends to everyone … EVERYONE… so if we have to allow the media to go somewhere that is unsafe… then the public has the same right… an 18 year old with an iPhone camera has the exact same rights to cover the news as a fully credentialed NBC news team.
OK… enough of the fun stuff… let’s get to the law. The issue is really cut and dried. We can establish and enforce a safety zone for both the public and the press. In Branzburg v. Hayes, 408 U.S. 665 (1972) the US Supreme Court said “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” In other words, the press’s right of access is no greater that the public’s right of access. That means if we can deny the public access to a certain area out of concern for the public safety, we can deny it to the press as well.
If you are following this discussion… you will notice another interesting question is raised: if we give the press access to a scene (think the TV show COPS), then can any 18 year old with an iPhone demand the same access??? …. The answer to that is going to have to wait til next time.
The New York Post ran an expose Sunday about the apparent widespread practice by FDNY EMTs of taking emergency scene pictures of patients and posting them in the social media. The article lists example after example of outrageous behavior and callous attitude. The reporter notes: “The photos of grisly corpses, gruesome wounds or humiliating circumstances provide fodder for mocking and gawking.”
The problem is hardly a new one, nor is it limited to FDNY. However, it comes of the heals of two recent high profile social media cases involving inappropriate tweets, one involving FDNY EMS Lt. Timothy Dluhos, currently suspended, and the other involving FDNY Fire Commissioner Sal Cassano’s son Joseph, an EMT who resigned.
Many will read the NY Post headlines and dismiss the photo-taking debacle by reciting any of a number of worn-out slogan-esque explanations… the EMTs showed a lack of common sense, stupid is as stupid does, WTF were they thinking, etc. etc. etc.
However, the cause of this problem is actually much bigger than a cutesy little expression and IMHO goes to the heart of our culture. People – coworkers and supervisors alike – had to know that the photo taking and posting was going on. What prompts us… each of us … coworkers and supervisors… to make a deliberate choice to look the other way at misconduct rather than do something about it?
How is it that there can be near universal condemnation after a firefighter is disciplined for posting something inappropriate – like we saw in 2010 when NY EMT Mark Musarella posted a photo of a murder victim on Facebook – yet beforehand the “condemners” lack the willingness… the courage to reach out to the person to say “Hey man… I have been noticing some of things you’ve been posting, and I am concerned for you. You are headed for trouble.”… Was the posting that led to the discipline the first inappropriate post the person ever made? I’m not buying that one!
Do “officers” deliberately ignore inappropriate conduct by subordinates because they fear a backlash against them in the stations? Does ignoring misconduct make headlines like we are seeing in the NY Post more likely or less likely? Does our firehouse culture support stricter regulations on photo taking and social media use, or will we collectively fight tooth and nail against any effort by the fire chief to draw a line?
While we debate, the clock is ticking on our opportunity to address the photo taking and inappropriate posting problem.
New York sits between two states that have chosen to address the problem through legislation. Both New Jersey and Connecticut have made it a criminal offense for an emergency responder to take a photo of a patient or victim, and a separate criminal offense to post it online. A CRIMINAL OFFENSE!!!!
In NJ, besides making photo taking or posting a photo a crime – the law also allows a victim to sue a firefighter, EMT, paramedic or other responder who takes their picture (or posts it without their written permission) and recover $1,000 per photo plus attorneys fees. Both the NJ and CT laws have exceptions for legitimate work related photo taking for training and documentation purposes.
Do we really want the legislature to fix this problem for us?
I cannot help but go back to something one of my captains told me very early in my career with Providence. He said “Kid, we either keep our own house clean, or someone’s gonna come in here and clean it for us… and we’re probably not going to like the way they keep it clean…” He was not talking about housework….
This is where the fire service finds itself today. We have an internal housekeeping problem. It is a serious problem but it is one we can fix… we can get our own house in order… but we have to overcome those parts of our culture that are preventing us from implementing the solution.
…. Let me rephrase. In 48 states, we still have the opportunity to fix this problem on our own terms. There is still time. It will take leadership… and followership…
Although….. in the aftermath of the NY Post expose, I am thinking we may be down to 47 states… It is hard to imagine that someone in the NY state legislature is not working on a solution to help FDNY get their house in order.
We have all seen the comical photos of Walmart shoppers in various modes of dress and undress. One performer has even made several humorous music videos depicting the weirdos and crazies.
Facebook itself had its origins by showing photos of college students and allowing people to rate them as “hot or not”. It’s all in good fun, right? No harm, no foul.
So what is going on in Emmitsburg, Maryland, home of the US Fire Administration and the National Fire Academy, where a mother has declared war on cyberbullying after a firefighter posted photos of her daughter on line accompanied by unflattering comments.
Sherry Myers is furious about photos of her daughter Jayden that were posted online by a Pennsylvania firefighter that mocks her shoes, and asks people to guess whether Jayden is a boy or a girl.
It’s the other side of the laughter… the painful side… the ugly side of social media.
Here is a link to Sherry’s Facebook page, which she has aptly named Justice for Jayden. Spend some time there and read some of the comments from those who have been hurt by cyberbullies.
While all the facts have yet to be sorted out in the Myers case – let me make a few points about where we are law wise on cyberbullying.
Here in the US, the laws are way behind the times. While some states have enacted laws to address cyberbullying, most states rely upon tort privacy laws developed in the 1800s and 1900s. These laws did a decent job until fairly recently. Today they are being asked to address an entirely new problem… and it may be a task they are not up to.
Is it really an entirely new problem? Bullying has always been around and always will be – but when it comes to spreading hurtful information on a massive scale – I say what we are facing is an entirely new problem.
In the late 1800s, how would one go about spreading embarrassing rumors, malicious falsehoods, or even breach a person’s right to privacy on a massive scale? The options were pretty limited and usually required large sums of money to take out newspaper ads, or influence reporters and editors in order to spread a story very far. The spreading of the story would be relatively slow compared with today – and the courts did offer some remedies that could address those mean spirited activities. Newspapers also had to be concerned about such suits and thus had an incentive to do some self-policing of what was published.
The 1900s brought us new means of mass communications through radio and later television. Still these methods of communication were beyond the financial means of most people and the law offered realistic remedies to address any wrongdoing that did occur. Like the newspapers, radio and television stations themselves had good reason to watch what was said out of fear of becoming the target of such a suit.
But what about spreading malicious information in the Internet Age – where virtually anyone can communicate with thousands, even millions, for free and virtually instantly? What about the fact that people who have no financial footprint to speak of can spread malicious information to an unprecedented degree with little to no risk of legal consequences? No self-policing… they are judgment-proof… or close enough to make the cost of a civil suit unrealistic for most people.
How exactly does the law – developed originally to address problems back in the Pony Express days, give Sherry and Jayden Myers some measure of comfort, some justice?
And just as importantly, how do we, as members of the Internet community, draw our own lines about what is and is not fair game when it comes to humor, satire and parody?
The two issues are linked… or at least they should be.
Can we protect Jayden and still have our funny Walmart photos? Is there a line that can be drawn that makes one OK and the other not?
The law should reflect the ethical choices we as a society believe in.
A battalion chief with the Bradley County Fire Department has received a 2 day suspension for allegedly sexting a female co-worker while on duty.
Battalion Chief Don Tankersley, who was promoted last December, will be prohibited from carrying a personal cellphone for a year and must undergo sexual harassment training. The incident allegedly involved a personal cellphone and not county property.
An HR investigation was initiated after a female employee complained that Chief Tankersley texted her pictures of his genitals. The investigation stopped short of ruling it sexual harassment because it only occurred once, but concluded it was clearly “inappropriate sexual conduct”.
The foolish act of sending an inappropriate photo in 2010 has come back to haunt a new Colorado fire chief.
Fire Chief Bryan Ware, 37, took the reins of the newly created Beulah Fire Protection and Ambulance District in Beulah, Colorado earlier this month following a fire-EMS consolidation. He was previously in charge of the Beulah Ambulance District dating back to when he was hired in 2010.
Coincidentally, Chief Ware resigned from the Huron (Ohio) Fire Department in 2010 in the midst of a criminal investigation for having sent a picture of testicles to a group of friends as a joke. One of the recipients of the photo was a 16 year old boy who was on a soccer team that Chief Ware coached.
Chief Ware was charged with disseminating matter harmful to juveniles, pled guilty, and was placed on probation. The probation ended in October, 2012.
The disclosure of the charge has prompted a division in the community and the department with a number of firefighters resigning. The district board reportedly knew about the charge and some other details about the chief, but felt he was doing an excellent job as chief.
Two employment related cases on the East Coast are in the headlines, and while we don’t have much in the way of details on either one they certainly appear to be YCMTSU cases worth following.
In Simpsonville, South Carolina, the former police chief who was fired after just 3 months on the job, filed a grievance to get his job back. What connection does that have to fire law? When the grievance was denied, former Police Chief Keith Grounsell allegedly told the media that he was fired in part because he exposed an inappropriate relationship between the fire chief and his assistant police chief.
Coincidentally, Fire Chief Wesley Williams and Assistant Police Chief Colleen O’Neil had been suspended earlier this month, although the reason for the suspensions had not been publicly released.
Chief Grounsell and Chief O’Neil competed for the police chief’s job last year with Grounsell winning. The two have allegedly been butting heads since. Grounsell claims that after he disclosed the Williams-O’Neil relationship to the city administrator, Russell Hawse, Hawse “turned on him”.
Hawse countered that Grounsell’s “challenging of the mayor’s manhood and religion”, and “questioning of the intelligence of City Council members” played a bigger role in his decision to fire him. More on the story.
On Nantucket, a problem of another nature has prompted a firefighter to file suit against two of his co-workers, accusing them of slander, intentional infliction of severe emotional distress, and assault.
Firefighter Charles Kymer claims that firefighters Nate Barber and Sean Mitchell, falsely told police that he had photographed a young girl, procured her email address and distributed a picture of her to other firefighters following a surf incident last summer.
Kymer was cleared of wrongdoing in the case. He filed suit in Nantucket District Court.
Today’s burning question: My fire department is installing video cameras on each ambulance, covering both inside the cab and box, and outside as well. Is this is legal? I think the administration is merely trying to spy on us and I also wonder about patient confidentiality.
Answer: Interesting question and one that police departments confronted years ago. Let me start off by saying that cameras have caught more than a few police officers doing bad things. In the big picture, is that a good thing or bad thing? I think we’d all agree that it is a good thing. So wouldn’t we be a bit hypocritical to use a different set of standards when it comes to ourselves?
Perhaps the bigger point to consider with regard to law enforcement and videos is – as much as cameras have captured some police officers acting improperly – they have caught way more bad guys acting improperly… including many who try lie about it and accuse the officers of misconduct. By far, most police officers now believe in dash cams and most can recite story after story where officers have been exonerated from allegations of wrongdoing by virtue of video surveillance.
But your question was not about whether video cameras were a good idea or bad idea… right? Your question was about the “legality” of video surveillance.
There are a number of issues that can arise when an employer decides to use video surveillance in the workplace. Arguably it is a change in working conditions that in a union environment must be negotiated. Some states (Connecticut) require advanced written notice to employees before an employer can engage in any form of electronic surveillance in the workplace.
In an EMS environment there are also patient privacy and medical confidentiality issues. Confidentiality issues can be addressed by ensuring that videos are properly secured and that personnel do not violate confidentiality by improperly accesses, viewing or disseminating them. In most respects managing the videos would be no different than how we manage patient information in our run reports.
The bigger legal question is privacy. In this regard states differ tremendously.
There are two sets of concerns: audio and video.
In regards to audio, it is illegal for someone to secretly record a conversation they are not a party to. This principle holds true in all 50 states.
While employees can be required in advance to consent to audio recording as a condition of employment (assuming any collective bargaining hurtles are successfully cleared), the same cannot be required of patients and third parties. Therefore, to the extent that the video cameras record audio and capture conversations between parties who have not consented, the recordings may violate state law. Most states require the consent of at least one party to a conversation for it to be recorded, and 12 states require the consent of all parties. The consent issue can be addressed in most states by placing warning signs cautioning others that they are being recorded – but it needs to be thoroughly researched on a state level… and it is not a perfect solution.
In regards to recording video, there are a number of states that prohibit the use of cameras in certain areas. Some states limit photo and/or video recording in areas such as bathrooms, changing rooms, locker rooms, bedrooms, and patient treatment areas. Other states refer to any location where people have an “expectation of privacy”. The back of an ambulance could be one such place where a patient believes he/she has an expectation of privacy. Again, it is important to know your state laws.
In terms of a overcoming a patient’s expectation of privacy in the back of an ambulance, that can be addressed through the proper placement of signs, similar to the way we would address audio recording. However, with regard to signs there remains the issue of language barriers, folks who cannot read, and the blind…. Lots to think about!
So the bottom line is – there are a few legal issues that need to be addressed in order to put video cameras on EMS units. Using cameras that record both audio and video raises a few more issues than cameras that record video only, but in either event it is probably doable in most jurisdictions if done right.
The State of New Jersey has finally pulled the trigger on Cathy’s Law, joining the state of Connecticut by formally criminalizing the (a) taking or (b) dissemination of emergency scene photos depicting a patient by emergency responders.
Cathy’s Law was named in honor of Cathy Bates of Ocean County, who was fatally injured on October 23, 2009. As she lay dying in her vehicle a volunteer firefighter snapped a photo of her and posted it to Facebook long before her family was notified she had been involved in the crash. Riding the public outrage following the revelation of what occurred, Cathy’s mother, Lucille Bates-Wickward, mounted a grass-roots lobbying campaign intended to help prevent future lapses in judgment by responders.
Governor Chris Christie signed the bill into law yesterday, and it became effective upon signing. New Jersey joins Connecticut who passed a similar law that became effective on October 1, 2011. The Connecticut law imposes a $2,000 fine and 6 months in jail for responders who violate it.
As originally introduced several years ago, Cathy’s Law would have imposed a $10,000 fine and up to 18 months in jail. As enacted the law makes it illegal to take a photo/video depicting the victim “except in accordance with applicable rules, regulations, or operating proceduresof the agency employing the first responder”; or to disclose (ie. disseminate, copy, post, forward or share) such a photo/video without the patient’s prior written consent.
Violation of Cathy’s law is by statute deemed to be a “disorderly conduct offense”, and triggers civil liability of the responder to the victim or victim’s family in the amount of $1,000 per photo, plus attorneys fees along with the possibility of punitive damages. Here is a copy of the statute. Cathys Law
I cannot help but feel a sense of failure at the passage of laws such as Cathy’s Law. Had fire service leaders (myself included) had the courage and foresight to address the challenge of emergency scene photo taking through clear policies and proper training of personnel, such a law would be unnecessary. In the memorable words of one of my former officers “Kid, we either keep our own house clean, or someone’s gonna come in here and clean it for us”. His next sentence is also worth considering: “And we’re probably not gonna like the way they clean it”. It is a predictable and therefore preventable problem.
In the mean time, if you are in New Jersey or Connecticut and your department does not have a digital imagery policy that allows you to take photos or video: turn off your helmet cam, turn off your dash cam, and keep your camera or cellphone in your pocket… and don’t be posting photos taken by others!
Its been a busy week discipline wise in the fire service. Already here in Fire Law Blog we have posted stories from Philadelphia, Seattle, Baltimore, and Jacksonville, Florida that involved misconduct brought to light through internet postings.
Now comes even more: Fresno, California firefighters and police officers are under investigation for posing for racy photos with bikini clad women while in duty.
According to news sources, the firefighters were asked to pose for some pictures to be used to in conjunction with a car show. Firefighters had just returned from a run.
Two stories in the news this week have prompted investigations in their respective fire departments looking into inappropriate behavior of firefighters. Both cases would probably have been non-issues had it not been for the fact that certain photos found their way online.
One case involves internet photos of Baltimore City Mayor Stephanie Rawlings-Blake’s face on a roll of toilet paper and Fire Chief James Clack’s face in a toilet bowl. The photos have sparked a number of things:
Accusations against Baltimore Firefighters Local 734 union president Rick Hoffman that he allowed the images to be circulated without condemnation and what’s more, suspended another union official for informing city officials of the photos
An official fire department investigation into the matter
A protest of sorts by some union members against the union
A public apology by President Hoffman and condemnation of the photos
The second case involves the questionable behavior of several Jacksonville, Florida firefighters who took part in a fundraiser event held at the Whiskey River nightclub to support the family of a firefighter who died while off duty.
The firefighters, wearing turnout gear, engaged in racy (some allege lewd) behavior during the event.
The Jacksonville Fire Rescue started an internal investigation after photos of the event appeared online. JFRD policies prohibits firefighters from wearing anything that identifies themselves as a firefighter in a place that sells alcoholic beverages, unless they’re working in a city capacity.
A Texas firefighter has been indicted on charges that he used his smartphone camera to secretly take photos in a fire station bathroom.
Last Thursday, a Walker County grand jury returned a true bill against Christopher Alexander Clark, 31, on one count of violating Texas Penal Code Section § 21.15, Improper Photography or Video Recording. Clark was a volunteer at the New Waverly Volunteer Fire Department, Walker County ESD#2.
The device was discovered by a female member on March 4, 2012 when she went into a fire station bathroom to change. She said she heard a snapping noise and noticed a smartphone on the floor near the toilet. The phone had an application running that caused it to take continuous photos.
Besides containing photos of the female victim, the smartphone also captured images of Clark placing the phone. The charge is a felony and Clark faces 2 years in jail and a $10,000 fine.
The Oklahoma City Fire Department is on the defense following the release of a YouTube video depicting the treatment of a female patient in 2010. The video appears to show some level of complacency by responders allegedly because the victim was a prostitute, but it also shows something else: firefighters taking cellphone images of a helpless victim.
OCFD has already adopted a formal digital imagery policy that will address photo taking going forward. Fire Chief Keith Bryant has raised a number of questions about the video, including the fairness of the editing and commentary by its maker, Brian Bates. Chief Bryant insists the treatment rendered was appropriate and the unedited video proves it. There will be more coming on this one, I’m sure.
Today’s burning question: Do firefighters and emergency medical personnel have the authority to stop people from taking photos at emergency scenes? Does it matter whether the filming is being done by the media or ordinary citizens? Perhaps as a result of the wide spread use of digital and cellphone cameras, these questions continue to resurface time and time again.
Last week, the United States 1st Circuit Court of Appeals reaffirmed that we have absolutely no right to interfere with photo taking by the media or citizens in public places, and that we could be held liable for violating the First Amendment Rights of the photographers.
The case involved Boston police officers who arrested an ordinary citizen, Simon Glik, for video recording their rough handling of a suspect. The officers ordered Glik to stop taking photos and when he refused, he was arrested for disturbing the peace and violating a state law that prohibits secretly recording a conversation. According to police, Glik’s video recording included audio, which they claim made it an illegal “clandestine” (secret) recording.
The criminal charges against Glik were eventually dropped, but he opted to file suit in Federal court against the officers for violation of his 1st Amendment Rights. The officers sought to have the case dismissed claiming they were entitled to qualified immunity. One of the central issues in the case was whether or not the officers violated a “clearly established constitutional right”.
In writing the opinion, Judge Kermit V. Lipez cited dozens of 1st Amendment cases that clearly explain that the media and ordinary citizens have an absolute right to film governmental officials doing their work in public places. He also cited cases holding that ordinary citizens have just as broad a right to gather news as the traditional media, and government cannot unreasonably restrict the exercise of that right.
Judge Lipez concluded: “though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
As Judge Lipez noted, the right to take photos is not without limitation. It is subject to “reasonable time, place, and manner restrictions”. While the decision did not discuss the boundaries of those restrictions, they are important for us to recognize and understand. First of all, photographers must be in a publically accessible location. They have no right to enter into someone’s home, onto private property, or be granted access into restricted areas, such as the back of an ambulance. Secondly, the right does not allow photographers to interfere with operations. Third, photographers must respect reasonable hazard/safety exclusion zones that are set up.
From the responders’ perspective, what can we do if someone is filming something that we prefer they not film, such as a critically injured accident victim or a body? Nothing in the 1st Amendment case law prohibits emergency responders from physically standing in such a way as to block the line of vision of a would-be photographer, or even erecting barriers (with blankets or sheets) to shield a patient from glare of cameras. Such actions may be entirely appropriate for responders when matters of patient confidentiality are an issue.
However, at no time should we attempt to stop someone from filming, physically restrain them, or attempt to turnoff or take their camera equipment. The public has a “well established 1st Amendment Right” to take photos and video at incident scenes.
Here is a copy of the Glik decision. Glik_Boston_Video Incidentally, Judge Lipez is well known as a brilliant legal scholar and does an excellent job of explaining the state of the law in a way that even non-lawyers can understand.
A volunteer firefighter is in serious trouble in Pennsylvania for what appears to have been a highly inappropriate prank involving a minor. Chad Richey, 29, of the Citizen’s Hose Company No. 1 in Glassport, has been charged with sexual abuse of a child by filming a sexual act, two counts of criminal solicitation, and corruption of a minor in connection with an incident that occurred in the fire station on May 25, 2011.
Richey alleged coerced a minor into exposing himself and surprising a community service worker who was in the station listening to headphones. The minor waved his private parts in front of the startled worker as Richey filmed the event with his cellphone camera.
The joke probably would have gone unnoticed but for a video surveillance camera in the fire station that captured the entire episode. During the investigation the minor said that Richey encouraged and dared him to do it.
Richey was arraigned before Glassport Magisterial District Judge Armand A. Martin on Tuesday, July 26, 2011. He will be back in court in September when the case proceeds to trial court in Pittsburgh. More on the story.
I received a great question today, and wanted to add it to the online discussion: Have there been any cases or instances of firefighters receiving reprimands or disciplinary action for posting fire pictures on their Facebook page?
Answer: Yes there have been disciplinary actions taken against firefighters for posting fire photos and videos on line. The cases I am aware of occurred in fire departments that had policies on taking and/or posting digital images, and the discipline was over violations of the policies.
In departments that do not have digital imagery policies, most of the discipline cases involve EMS related photos, not fires. The EMS cases involve personnel being disciplined for breaches of confidentiality.
There is a much bigger problem out there that most firefighters have not stopped to consider, called spoliation. When someone who is involved in a law suit or criminal matter has evidence relevant to the proceeding, he/she is under an obligation to preserve that evidence. The destruction or loss of relevant evidence is called spoliation – and is a HUGE potential problem that most firefighters are completely unaware of. If a party to a law suit/criminal proceeding destroys or fails to preserve evidence (commits spoliation) the judge may instruct the jury they may infer that the spoliation was committed because the evidence was favorable to the other side.
A scenario will help explain the problem. Let's say a FD responds to a building fire, and FF Jones (who is on-duty) takes 10 photos at the scene. The next day he posts 5 photos on Facebook, but deletes the others. Later, Mr. Smith is charged with arson for the fire, and his attorneys discover the Facebook photos. They also learn that FF Jones actually took 10 photos but deleted 5 of them. FF Jones has arguably committed spoliation – which could compromise the arson case against Smith. Smith’s attorneys will argue for a jury instruction to the effect that the jury can infer the deleted photos would have shown that Smith was not guilty. The same problem occurs if the building owner were to sue the fire department for negligence in fighting the fire. The destruction of the photos by FF Jones could be held against the fire department. These are just two examples – but hopefully the potential for spoliation problems is evident.
This is a very challenging and emerging area of the law and we cover it in detail in two of the programs I teach through LLRMI, Fire Service Leadership: the Law and Legal Issues, and Managing Fire Service Liability & Safety Best Practices. The bottom line is that all fire departments need a digital imagery policy so that photos and videos can be taken for training and documentation purposes, but concerns over spoliation can be addressed.
Departments should also have a social media policy so that both the fire department administration and the firefighters themselves know what is and is not permissible. Most of the social media discipline cases we see are due to the fact that the line between permissible conduct and “conduct unbecoming” is not clear to everyone beforehand!
The Rhode Island Supreme Court licenses all lawyers in the general practice of law. The Court does not license or certify any lawyer as an expert or specialist in any field of practice.
Biography
Curt Varone has over 39 years of experience in the fire service, and 27 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006) and Fire Officer's Legal Handbook (2007), and writes the Fire Law column for Firehouse Magazine.
Cyberbullying – The Ugly Side of Social Media
We have all seen the comical photos of Walmart shoppers in various modes of dress and undress. One performer has even made several humorous music videos depicting the weirdos and crazies.
Facebook itself had its origins by showing photos of college students and allowing people to rate them as “hot or not”. It’s all in good fun, right? No harm, no foul.
So what is going on in Emmitsburg, Maryland, home of the US Fire Administration and the National Fire Academy, where a mother has declared war on cyberbullying after a firefighter posted photos of her daughter on line accompanied by unflattering comments.
Sherry Myers is furious about photos of her daughter Jayden that were posted online by a Pennsylvania firefighter that mocks her shoes, and asks people to guess whether Jayden is a boy or a girl.
It’s the other side of the laughter… the painful side… the ugly side of social media.
Here is a link to Sherry’s Facebook page, which she has aptly named Justice for Jayden. Spend some time there and read some of the comments from those who have been hurt by cyberbullies.
Here is more on the story itself.
While all the facts have yet to be sorted out in the Myers case – let me make a few points about where we are law wise on cyberbullying.
Here in the US, the laws are way behind the times. While some states have enacted laws to address cyberbullying, most states rely upon tort privacy laws developed in the 1800s and 1900s. These laws did a decent job until fairly recently. Today they are being asked to address an entirely new problem… and it may be a task they are not up to.
Is it really an entirely new problem? Bullying has always been around and always will be – but when it comes to spreading hurtful information on a massive scale – I say what we are facing is an entirely new problem.
In the late 1800s, how would one go about spreading embarrassing rumors, malicious falsehoods, or even breach a person’s right to privacy on a massive scale? The options were pretty limited and usually required large sums of money to take out newspaper ads, or influence reporters and editors in order to spread a story very far. The spreading of the story would be relatively slow compared with today – and the courts did offer some remedies that could address those mean spirited activities. Newspapers also had to be concerned about such suits and thus had an incentive to do some self-policing of what was published.
The 1900s brought us new means of mass communications through radio and later television. Still these methods of communication were beyond the financial means of most people and the law offered realistic remedies to address any wrongdoing that did occur. Like the newspapers, radio and television stations themselves had good reason to watch what was said out of fear of becoming the target of such a suit.
But what about spreading malicious information in the Internet Age – where virtually anyone can communicate with thousands, even millions, for free and virtually instantly? What about the fact that people who have no financial footprint to speak of can spread malicious information to an unprecedented degree with little to no risk of legal consequences? No self-policing… they are judgment-proof… or close enough to make the cost of a civil suit unrealistic for most people.
How exactly does the law – developed originally to address problems back in the Pony Express days, give Sherry and Jayden Myers some measure of comfort, some justice?
And just as importantly, how do we, as members of the Internet community, draw our own lines about what is and is not fair game when it comes to humor, satire and parody?
The two issues are linked… or at least they should be.
Can we protect Jayden and still have our funny Walmart photos? Is there a line that can be drawn that makes one OK and the other not?
The law should reflect the ethical choices we as a society believe in.
Posted in Ethics, First Amendment, Humor, Municipal Liability, Social Media, You Can't Make This Stuff Up
Tagged digital imagery, Justice for Jayden, malicious comments, privacy, Sherry Myers