Firefighters love pictures! And, they love taking pictures. Technological advances have made it easier than ever to take on-scene photos and videos. And, there are innumerable outlets for downloading them to the Internet and to personal devices. But, have you ever thought about the potential legal consequences? Probably not. It's not hard to think of some potentially significant risks. Unfortunately, perhaps because the technology has developed so rapidly, there appears to be little precedent to rely upon and we're left with more questions than answers.
Bert Kragas is an Oregon attorney and author of Legal Handbook for Photographers: The Rights and Liabilities of Making Images. He offers useful insights on the basic legal principles that apply to photography, which includes video.
It is a basic principle of law that anyone may take a photo (or video) of anything that is in a public area. In contrast, the law makes clear that we have a right to privacy in private places, such as our home, a hospital room or the interior of an ambulance. The courts limit taking photos in private areas as an intrusion into a person's privacy. Unwanted photos taken in these private places are considered to be an invasion of that privacy and not allowed without consent of the person being photographed.
Further, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) severely restricts the release of information about EMS calls, including photos, without the permission of the patient. This includes any photo with identifying information, such as a face or other identifying feature, or a motor vehicle license plate. "Release" would include almost any form of publication, such as posting online in any way, posting a printed copy in the station, or e-mailing it to others. An otherwise suitable photo could not be published with a caption identifying the patient, either directly or indirectly. The only relevant exception would be for "treatment purposes." Thus, a paramedic would be allowed to take a photo of a patient and then show it to hospital staff in his or her report to the emergency room.
The question of who owns a photo is a gray area of the law, with little case precedent. There is a lot of misunderstanding on rights of photographers versus rights of the government. Generally, the one who takes a photo is the one who owns it. However, there are some limitations. For on-duty firefighters and other responders, ownership depends primarily upon what the responder's duties are at the time the photo is taken. If it is taken in the line of duty (such as a fire investigator taking a scene picture to document investigative findings), then it clearly belongs to the department. However, a picture taken by an emergency responder for personal reasons, whether on a call, in the station or elsewhere, while on duty does not necessarily create department ownership.
The mere fact that a photo is taken with departmental equipment does not necessarily mean that it is owned by the department. Kragas offers the example of a fire department official who uses the department camera assigned to him while on a family vacation. He may be disciplined for violating department policy or misusing department property, but the photos would belong to him to use as he wishes.
Some argue that a photo taken by an emergency responder within the law enforcement perimeter is owned by the department. The department has a right to set a reasonable perimeter to protect safety and to ensure that operations are not impeded. But, Kragas argues, the perimeter is not created to restrict photography. A policy stating that such photos are departmental property would not be legally enforceable. The employee/volunteer could be disciplined for not abiding by departmental policy, but it is unclear that courts would force him to turn over the photo.
There is one additional important consideration for departments drafting a photography policy. Photos and videos make excellent documentation and can serve as valuable evidence for lawyers on either side of a lawsuit. They also can provide documentation of unsafe practices by the department, making the department itself vulnerable. Departments should be very careful about which pictures it publishes through any means.
Perhaps the most important lesson to be learned is that departments need to have a well-reasoned policy that is well communicated to its employees and/or volunteers. This will not stop unofficial photography, but it will protect the department and make clear to all what is expected of members. As Kragas notes, it is a lot cheaper to avoid a problem with a good policy than to litigate a problem after the fact.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is an active volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.