I have previously written about members of the emergency services taking photos when responding; see:
- Taking photos, recording sound (February 23, 2015 );
- Taking photos on the fireground in South Australia (January 9, 2015);
- Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013);
- US legislation on taking photos at emergency scenes (August 24, 2012);
- The use of photos taken at accident and emergency scenes (August 6, 2011).
Today’s question relates to a bystander taking photos and comes from a student paramedic in Queensland who says that:
… after reading of an incident in the United States, I became curious to what right of privacy a patient may expect in a public place. In the United States, a firefighter confronted a photojournalist after he continued to film a patient being moved from a building to a waiting ambulance despite paramedics requesting he stop.
My question is can bystanders be prevented from filming if a patient or paramedic requests it? And could it be considered some kind of intrusion on the patient or obstruction to the paramedic to continue filming?
It’s hard to draw lessons from the US as they have a Constitutional Bill of Rights which includes the first amendment that ensures freedom of the press and freedom of speech. I’m no US constitutional lawyer so I won’t try to explain the nuances of that provision but I do understand it makes it much harder to control the right of citizens to take and publish photos.
In Australia there is no first amendment, but equally there is no right to privacy. As I’ve noted in the earlier posts there is ‘no property in a spectacle’ (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479). What happens ‘in public’ is public and can be photographed.
Equally filming is not any unlawful intrusion nor is it an obstruction – how would filming actually interfere with a paramedics’s work? If the photographer was actually getting in the way, it’s the getting in the way not the filming that is a hindrance.
Readers may recall an interesting piece of ‘citizen journalism’ following the 2013 Gay and Lesbian Mardi Gras in Sydney when a police officer was filmed allegedly assaulting a mardi-gras participant and the video went ‘viral’ on social media (you can see the video at https://www.youtube.com/watch?v=wxtFtVfAeeE). You will also see at that video police asking people to stop filming and those people refusing to do so on the basis that there is no law against filming. I make no comment on the incident but do note that following the event:
Deputy Commissioner of the New South Wales Police Service Mark Murdoch told the media today at a press conference that the behaviour of police who asked citizens to stop filming that they demonstrated naivety in their comments.
“We support the right of the community to film anyone in a public space and we do so ourselves. Our police need to be mature enough to know that everyone has a mobile phone with a camera facility and they will use that. We thought at the senior level it had been communicated loud and clear but we have more work to be done there,” he said.
(See Luke Hopwell, ‘NSW Police Slam ‘Trial By Social Media’ As Mardi Gras Brutality Video Goes Viral [Updated]’ Gizmodo (Online), 6 March 2013; Bellinda Kontominas, ‘Police ‘naive’ to tell public not to film arrest’ Sydney Morning Herald (Online) 6 March 2013).
The Police Media Policy (2013) says (at p 32):
Camera footage taken from a public place, or a privately owned place with the consent of the owner/occupier, does not contravene the Surveillance Devices Act 2007. The footage can be taken in these circumstances even if the crime scene or activity itself is not in a public place.
The same is true for paramedics. In today’s world, everyone has a camera phone. The work of the emergency services will always attract interest and people are encouraged to take footage to send to TV stations or even to the emergency services themselves. It follows that everyone who turns out in an ambulance, fire appliance, rescue truck or police vehicle has to assume that everything they are doing can, and will be, filmed.
Even if filming was unlawful, it’s not a paramedic’s job to enforce the law. To quote again from the Police Media Policy (2013; p 32):
It is NOT the job of police officers at crime scenes to decide on whether legally obtained media footage or photographs are insensitive or in poor taste. What the media may publish is governed by various broadcasting laws and codes of conduct.
If it’s not a police officer’s job it’s certainly not a paramedic’s job (see also Lifesavers as law enforcers? (July 6, 2014)). In my paper ‘Media Access to Emergencies – Command, Control or Co-ordination?’ (2010) 25(1) Australian Journal of Emergency Management 13-17, I said (at p 15):
The emergency services are not, generally, charged with preserving all the rights of people affected by an emergency. People may well have privacy rights that could be infringed by an intrusive media presence and may have legal claims to compensation (Privacy and Personal Information Protection Act 1998 (NSW); Privacy Act 1988 (Cth); Giller v Procopets ) but that does not mean the emergency service charged with responding to the fire, flood or storm is also required, authorised or competent to protect those rights.
There are rules with which media agencies must comply when dealing with the broadcasting of information that is unfair, infringes privacy (ACMA 2004, 32; ABC 2007, 4, Australian Press Council 2006, ; Commercial Radio 2004, ; MEAA,  and ) or may prejudice a criminal prosecution (Breit 2007, 160) but the fire and emergency services do not have a specific authority, capacity or duty to monitor and enforce these rules.
Whilst that was directed at the ‘fire and emergency services’ it is equally applicable to paramedics. The conclusion was:
If there are restrictions on media access and publication they are imposed by the law governing the media, rather than emergency [and ambulance] services, and it is up to the media enforcement agencies, such as the Australian Communications and Media Authority, and in cases where criminal prosecutions are involved, the police, to enforce.
No, bystanders cannot be prevented from filming if a patient or paramedic requests it provided they are filming in or from a public space or on private land with the consent of the occupier.
Common practice in CFS is to screen the person whose privacy we would like to protect. We use a tarpaulin as a screen where we think to film is in poor taste or personally intrusive. This assumes we have spare members who can be delegated to this task, but in practice that is often the case.
Is this also the case where filming or photography is causing unnecessary/cruel distress to a patient? An example might be a panic attack where bystanders may exacerbate/cause physical symptoms for the patient simply by their presence – let alone putting a camera in their face. While medics may not have the right to stop those persons filming are there consequences from a criminal law perspective?
I can’t think of any crime or tort that would be relevant in the circumstances described. A person filming from a distance would not owe a duty of care to those being filmed and is committing no offence. If they were sufficiently close and were asked to stop and didn’t and that was upsetting the patient and making the paramedics job harder one might be able to argue that this was ‘hindering’ a paramedic (eg Ambulance Service Act 1991 (Qld) s 46) but that would not be easy. There can of course be a public interest (if not a public interested in) filming accident and crime scenes and catching the trauma of those involved. Whether it is ‘good taste’ to actually show that footage on TV is a different matter. But there is no general right to privacy in Australia. If the patient is distressed then the response is to remove the patient.
I’m curious about the definition of ‘public space’ in this context, for example a St John First Aid Post at an unbounded event on council land, can anyone enter the tent and take photos assuming they don’t hinder the treatment of a patient?
Would it make any difference if the patient (or subject of the photo) was a minor?
A public space has to be a space where people are generally allowed to go – open to the public. A first aid post is not a public space and you can be sure that the first aiders have the right to refuse entry to a first aid post and to insist that someone leaves it, so it’s not a public space. But if a person is outside a first aid post and can see inside they can also take a photo (think of all the TV footage showing ambulances and you can see people inside when the video’s shot at night). But even if someone did enter a first aid post and take a photo what offence would they have committed? I can’t think of any or any tort – the first aiders could ask the person to leave but they couldn’t confiscate the camera or seize it to delete the photo. If there has been an offence, or if it would be a tort to publish the photo, it would be up to the person photographed to seek that remedy.
It does not make a difference if the child is a minor. There is in fact no law that says you need consent to photograph children but it is ethical and appropriate and again you can see that television stations often pixilate photos of children, or don’t show their face but not all the time. Video of public events such as a music festival shows people partying and no doubt some of them are children.
What is illegal is taking photos for sexual purposes (see for example Crimes Act 1900 (NSW) ss 91K and 91L) but even if that is what is going on it’s not up to first aiders to act as police. If, for example, a person was naked in a first aid room (perhaps they had to disrobe for treatment or perhaps they were assaulted and clothes were torn off them) and a bystander took a photo of the naked person ‘for the purpose of obtaining… sexual arousal or sexual gratification’ then an offence HAS been committed and the police should be called. If they took the photo for the purpose of recording the gritty reality facing people who attended this event then no offence has been committed. It may be a breach of media ethics but that’s only relevant if the photographer is a member of the media. If they are a citizen journalist then the photographer may well want to sell it or post the photo online for – but they haven’t committed an offence. If there’s a civil law remedy, eg if publishing the photo is defamatory, then the person photographed would have to pursue that. Just think of the photos that appear in all the celebrity magazines and the indignities the Royal Family have had to put up with, because, as a general rule, if you can see it, you can photograph it.
Hello I was just reading your reply and I thought I had misread it so I looked again. You state “There is in fact no law that says you need consent to photograph children but it is ethical and appropriate and again you can see that television stations often pixilate photos of children, or don’t show their face but not all the time.” Can you elaborate on what you mean by ‘it is ethical’ to photograph children? I am not clear on how this would be considered ethical. I understand not a crime unless used for criminal purposes but being described as ethical -am presuming you do not mean in all circumstances.
or do you mean ethical to obtain consent?
Yes, I mean there is no law that says you need consent but it is ethical, even if not legally required, to obtain consent