‘Rubbernecking’, Privacy & Cathy’s Law

This article deals with people’s right to privacy and especially the privacy of those who have been injured or killed in a road crash. It examines why privacy is important and the general reasons why. It also questions the ghoulish habits of many drivers who ‘rubberneck’ and take pictures of the crash and then post them on social media. Surely, the injured or deceased person(s) is entitled to privacy and while there is no law saying you can’t take photos in public places, slowing down and taking photos on a motorway is a distraction and illegal. Uploading these images on social media for the world to see is not only very insensitive but voyeurism in the extreme. It now appears that this phenomenon is worldwide and on the increase. One instance of this abstruse act was a staggering 80 drivers who were captured using their cameras following a crash on the M1 (GB) while the driver of a truck was trapped for four-and-a-half-hours battling to stay alive. First responders have a duty of care to the injured and deceased and should only take pictures when directed to do so for forensic purposes. This is what happened in the Cathy Bates case in New Jersey and as a result a law was enacted to prevent such a recurrence. This law is known as Cathy’s Law. I am prompted to write this article following the recent events of a serious crash on the M50 (Dublin) where a young woman died of catastrophic injuries and graphic pictures of the crash were posted on social media almost immediately. The question now to be addressed is: should there be a law-similar to New Jersey – enacted to prevent such despicable behaviour from continuing?

‘Rubbernecking’, Privacy & Cathy’s Law

Tom Harrington LL B F Inst. MTD (January 2019)

“A first responder who is dispatched to or is otherwise present at the scene of a motor vehicle accident or other emergency situation, for the purpose of providing medical care or other assistance, shall not photograph, film, videotape, record, or otherwise reproduce in any manner, the image of a person being provided medical care or other assistance, except in accordance with applicable rules, regulations, or operating procedures of the agency employing the first responder”.

Introduction
Another week, another litany of death on our roads. The crash in which four young men died in a single-car crash in Donegal on Sunday night (27 January 2019) brought the death toll to 10 for that week. Also, the young woman who died of catastropic injuries in a car crash on the M50 the previous Thursday was devestating for her family and friends. The phrase ‘catastrophic injuries’, as opposed to the more prosaic ‘found dead at the scene’ was enough to inform was enough to inform any media-literate person that this was a truly horrendous crash. Under normal circumstances, that would be enough to to have most people bow their head for a moment in sympathy, and to hope the family cope as well as possible.

In the current culture, where nothing is real unless its been recorded and shared. At least one witness to the crash took and then shared gratuitous and deeply upsetting images of the aftermath. Was such a callous act shocking? Absolutely. Was it aurprising? Absolutely not. In fact we can expect to see more examples of such intrusive and invasive disregard for the dignity of others as the cult of sharing absolutely everything continues apace. The dissemination of the footage on various social media platforms caused immediate and justified fury amongst the victim’s family, friends and wider society. That quickly led to to the inevitable calls for strenghtened legislation to prevent such dispicable behaviour in future.
We have all seen instances of ‘rubbernecking’ on motorways where drivers slow down to have a good ‘butchers’ of a crash scene therefore, putting themselves and following drivers at risk of a secondary accident. However, this has now become more ghoulish with drivers trying to take photographs of the accident scene.

Ghoulish Voyeurism or Justified Public Interest?
Following a lorry crash on the M1 (between junctions 15/16) near Northampton, police officers were shocked to see drivers crawling along to get a better look at the scene. However, the quick-thinking officers set up their own camera and recorded all the motorists on the opposite carriageway who used their phones while driving – itself an offence. A staggering 80 people were captured using their camera phones to get a picture of the smash while the 21-year-old female trucker lay trapped inside her wagon for four-and-a-half hours battling to stay alive. Sgt. Mick Gray from the Collision Investigation Unit said: “The Force have taken the decision not to prosecute the motorists in a bid to educate them about the consequences of using a mobile phone while behind the wheel”. But why do so many people take photos in the aftermath of vehicle crashes? Is it merely ghoulish voyeurism or justified public interest? The last public hanging in Ireland was in 1868, so it’s more than a century since the ghoulishness associated with death was in any way acceptable viewing. Nowadays, this kind of prurience is mostly confined to science fiction dystopias like “The Hunger Games” or a particular kind of driver who not only slows down but also videos the car crash, hoping to record something shocking. Shortly after the M50 (Dublin) crash, graphic pictures and videos started appearing on social media sites. Gardai asked people to stop sharing the images and are examining CCTV footage of passers-by. Everyone has expressed appropriate outrage. It is right that we are outraged, but the web is full of dark images, and the urge to post the pictures of the above mentioned crash seems to be part of a frightening new normal. Our curiosity about anything dark or grisly isn’t new.

Tougher Knee-jerk Laws?
Today, almost everyone has a camera in their pocket and photos of accident victims can circulate quickly around the internet and cause distress to grieving families. But is this an invasion of a victim’s privacy?

Could and should we now make it a criminal offence for someone to take pictures of serious crashes? Most of us will agree that certain types of graphic content should be prohibited and we want to see some accountability from social media companies that profit from what we post. But would that accountability break the web? If we want the internet to continue to be a space for creativity and innovation, we have to be careful about how we go about it. Gardai have said they can use motorway traffic laws to prosecute drivers who may have taken photographs of the accident’s aftermath, and have already identified one person. Drivers using mobile phones can be charged with distracted driving. That law was introduced in December 2013. Last year, the driver of an articulated truck in Cork, was convicted of careless driving as he had used both hands to take photos of an accident on the South Ring Road (Cork). He was fined €600 and given five penalty points. Should we now go further and make it a criminal offence to take photos of accident scenes that invade victim’s privacy at such a distressing time? However, we should always be wary of politicians calling for tougher knee-jerk laws; laws that become unenforceable or open to state abuse. As the adage states, ‘hard cases make bad law’, and while our collective horror at the M50 footage demands that someone be held accountable, any legislation would be immediately open to challenge. After all, it was only six months ago the Justice Minister – Charlie Flanagan – floated the idea of criminalising filming the Gardai and was promptly shot down. At the time, one law lecturer pointed out that: “Any sort of blanket prohibition would be clearly in violation of freedom of expression under the Constitution and under the European Court of Human Rights”.

Cathy’s Law
Cathy’s Law is a New Jersey Statute (2012) that bans paramedics and other first responders from sharing photos or videos of accident victims without their permission. The law was prompted by the case of Cathy Bates, a woman who died in a car accident, a photo of which was posted on social media before the family was even notified of her death. Here, there were clearly issues about privacy laws.

Our privacy rights don’t extend to the dead but many courts around the world have concluded that families of deceased individuals do have privacy rights to the deceased. There have been a number of instances where that kind of intrusive behaviour has led to the development of new privacy laws.
In 2012, a family tormented by explicit accident photos of their daughter on the internet settled a lawsuit against the California Highway Patrol (Police) for leaking accident pictures of their daughter that went viral worldwide. The Catsouras family were paid $2.375m and the lawsuit rewrote law throughout California concerning the privacy rights of surviving family members.

Privacy’s Importance
There are two general reasons why privacy is important. The first is that privacy helps individuals maintain their autonomy and individuality. People define themselves by exercising power over information about themselves and a free country does not ask people to answer for the choices they make about what information is shared and what is held close. A second reason that privacy is important is because of its functional benefits. These have been especially slippery for policy-makers because they have often used the term ‘privacy’ to refer to one or more of privacy benefits. The right to privacy refers to having control over your personal information. It is the ability to limit who has this information, how this information is kept and what can be done with it.

‘Disorderly Order Offence’
The State of New Jersey formally introduced criminal law joining the State of Connecticut by formally criminalizing the (a) taking or (b) dissemination of imagery scene photos depicting a patient by emergency responders. Cathy’s Law was named in honour of Cathy Bates of Ocean County, who was fatally injured on 23 October 2009. As she lay dying in her vehicle, a volunteer fire-fighter snapped a photo of her and posted it on social media long before her family had been notified she had been involved in the crash.
Clearly, apart from invading this unfortunate victim’s privacy, it was a ghoulish way to portray a dead person to the world. Riding on 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 judgement by responders. The States of New Jersey and Connecticut who passed similar privacy laws became effective on 1 October 2011. The Connecticut law imposes a fine of $2,000 and 6 months in prison for emergency responders who violate it. Originally, implemented 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 of a crash except:

“In accordance with applicable rules, regulations and operating procedures if the agency employing the first responder, or to disclose (i.e. disseminate, copy, post, forward or share) such a photo/video without the patient’s prior consent”.

Violation of Cathy’s law is by statute, deemed to be a “disorderly conduct offence” and triggers civil liability of the responder to the victim or the victim’s family in the amount of $1,000 per photo plus attorney’s fees along with the possibility of punitive damages. .

Article 4.3.1-Irish Constitution
The Convention of Human Rights contains a specific declaration of the right of an individual to have their private life and information protected. Issues of privacy can affect anyone in the country. It’s not just celebrities and public figures that have to guard against private details of their lives to be made public. People can still have their details made public unlawfully, if they are connected to a criminal investigation or if they are wrongly placed on the police DNA database.

The Regulation of Investigatory Powers Act (RIPA) (GB) is an act that has been brought in to ensure that surveillance of private individuals is carried out in accordance with the various regulations the purpose of which are designed to protect the members of the public. In the UK, there is no separate privacy law as such. Instead, The European Convention of Human Rights which has been implemented in the UK and Ireland, contains an article affording citizens of both countries a ‘right to respect for private and family life’, sometimes known as the ‘Article 8 Right’.

Article 4.3.1 of the Irish Constitution states:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

The right to privacy was first recognised in this jurisdiction in McGee v Attorney General [1974]. Walshe, J. in the Supreme Court held that Article 40.3.1 of the Constitution guarantees the husband and wife against … invasion of their privacy by the State. The facts of the case were as follows. Mrs McGee had two children and due to complications was advised by her doctor not to have any more children. In order to avoid a further pregnancy, Mrs McGee imported contraceptives from Northern Ireland. These were confiscated by Customs Officials. Her appeal to the Supreme Court was allowed as the State (Custom Officers) had invaded her and her husband’s marital privacy.

Conclusion
We clearly need to adjust our laws so that we have consequences for this despicable kind of behaviour. Ireland urgently needs to update its laws to ‘catch up’ with the technology that allowed people to share gruesome images from the site of the fatal road crash on Dublin’s M50. In the meantime, we all need to think a bit harder and deeper about how we use social media and what we choose to post on it. If the law is not the answer, then it is obviously up to the social media giants to more efficiently police what they allow to be shared on their platform. But even more than that, perhaps it’s time for all of us to critically examine an environment where such egregious breaches of basic decency are now more an inevitability than a surprise.
It takes a special kind of cruelty to even think of taking a picture of such a horrific incident, and the depths of that moral bankruptcy were only increased by the decision to post it. But we no longer have the luxury of expressing surprise when something like this happens because we have been used to watching death as entertainment, and the boundaries between basic decency and the once despised practice of voyeurism have virtually disappeared. There’s a very good chance that those responsible for spreading the image from the M50 crash genuinely didn’t think they were doing anything wrong, which somehow makes their decision even more depressing. That’s because the very concept of privacy has been fatally compromised in a world where we live life through the lens – either the images we post of ourselves, or of others that we watch. More depressing again, however, was the eagerness of some Irish people on social media to see the footage, which they would no doubt disseminate to sites which wallow in gore and cruelty. But while there is no doubt that revulsion and contempt are perfectly reasonable responses, the gut-instinct calls for more laws that will simply create their own problems. The law already exists to prosecute anyone who uses their mobile phone while driving, and hopefully the authorities will be able to employ that rule – and employ it to the fullest extent available. But what of first responders taking pictures of those they are trying to save? It is clear that those is such a responsible position should exercise diligence and refrain from taking unauthorised pictures of the injured and deceased and under no circumstances post them on social media for the world to see. Cathy Bates ‘untimely death and the subsequent foolhardy and illegal action of the fire-fighter has once again brought privacy laws into focus and perhaps voyeuristic ghouls and even motorway ‘rubbernecker’s’ will think twice before partaking in this puerile and abstruse practice.

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