A thirteen-year old girl is swept down a flood control channel in Los Angeles as swiftwater rescuers struggle to pluck her out of the torrent. A woman and her son are in a violent automobile accident and rescuers make a heroic effort to save them. The parents of a young man receive a surprise telephone call from police officers informing them that their son may be the victim of a homicide. A well-known Hollywood actor discovers his beautiful wife lying at the bottom of their swimming pool. Distressed and agitated, he calls 9-1-1.
Other than the obvious emergency response connection, what do these incidents have in common? Each intensely private, devastating, and frightening moment was "caught on tape". Some incidents ended up on the news. Others were edited into rescue-oriented documentaries. And some tumbled into the murky world of "rescuetainment", where the drive to get "exciting", "real life", "dramatic" sound and video footage on the air overshadows all other concerns, including an individual's "right to privacy" and dignity.
The constitution securely protects the mainstream news media. Most public safety agencies have learned to work with reporters during disasters and other major events, where news organizations serve as a vital information link, broadcasting storm warnings, airing instantaneous reports from disaster ravaged neighborhoods, and alerting the public about potentially life-threatening hazards. News helicopters often provide personnel in command centers with an instantaneous overview of what's happening in the field. And when handled responsibly, follow-up news reports, including interviews with fire-rescue and law enforcement personnel and survivors who have been rescued, or the families who have lost loved ones, can be educational, informative, and serve a genuine public information purpose.
With the burgeoning marketplace on network and cable television for "reality programs", as well as the infant media market on the Internet, the line between legitimate news and documentary programming and mutant "rescuetainment" has been steadily eroding. Demand for the most vivid, knuckle-biting, and sometimes shocking footage has skyrocketed, with hefty profits luring amateur and professional videographers around the world to chase tornadoes, or aim their cameras at avalanches, bank robberies, school shootings, or any similarly "thrilling" event.
Beyond the sometimes questionable moral, ethical, and artistic issues surrounding this trend, there is a deeper and more serious legal threat that public safety agencies need to be aware of. Individuals whose personal tragedies have become the unwitting subjects of "reality television" shows are beginning to assert their legal rights and demand greater accountability.
When Ruth Shulman and her son, Wayne, were involved in a serious auto accident, they were grateful for the quick emergency response that saved their lives. What they never bargained for, however, was that Mercy Air, the air ambulance company that was on scene, had permitted a video cameraman who was employed by a television production company to do a "ride-along" that day. The cameraman captured the extrication of the Shulmans from the car, including efforts by a flight nurse and paramedic to provide medical care in the helicopter during transport to the hospital. The flight nurse wore a cordless microphone that picked up not only her own comments, but also the distressed voice of Ruth Shulman.
Antony Stuart is a Los Angeles attorney who is representing the Shulmans in a lawsuit filed against both the television production company and Mercy Air. "The Shulman tape was edited into a broadcast television show, with sound effects added and narration that presented some untrue facts to heighten the drama of the rescue," Stuart explained. "An hour-long rescue was compressed into a nine-minute segment. Everything was very dramatic, with gasoline dripping onto the patient and paramedic, so there could be an explosion at any moment, and the situation was very volatile, but despite all this danger the nurse and paramedic continued to work." Beyond several factual problems, including the threat of a gasoline explosion, Ruth Shulman and her son had no idea that their personal tragedy had been videotaped and, without their consent or cooperation, was scheduled to be the subject of a "reality" television program.
Three months after the accident, while Ruth Shulman was still in the hospital, her son called and told her to turn on the television. "Ruth turned on the TV," Stuart recounted, "and was forced to relive the most harrowing moments of personal tragedy in her whole life, because she was rendered paraplegic by the accident."
The lower courts initially dismissed the case, but upon appeal, the California State Supreme Court determined that specific "causes of action" could proceed to trial. "The Shulman case attempted to draw a line," Stuart said. Mercy Air was eventually dismissed from the case, but the message was clear. "Ride-alongs put individual rescuers and public safety agencies in a precarious position," Stuart cautioned, "especially if personnel in the field are asked to wear microphones."
Most reputable television production companies would do everything possible to avoid the kind of legal nightmare that grew out of the Shulman rescue. The Learning and Discovery Channels feature a variety of medical and rescue documentary programs, some of which draw from news and home video sources, and others, like "Paramedics" and "Trauma: Life in the ER", which are created with "ride-along" cameras. Bronagh Mullan, Manager of Program Publicity for the Learning Channel, noted that extra precautions are taken to secure permission from anyone who is featured on their shows. "We have a number of different safeguards in place so that the patient's rights are respected," Mullan explained. "We work with a medical ethicist to decide what's appropriate and what is not. We also work very closely with the hospitals and paramedic units. If they don't think something is appropriate, they'll tell us to shut the camera down."
Clearance procedures are very exacting, Mullan added. "We have a double consent process where we receive permission from the patient or a family member when we first film them. And then we go back after we put the show together and ask again for their consent to ensure that they're clear about exactly what we're doing and what the show is about." The double consent process has worked well, Mullan said. "There have been instances where we've gone back the second time for clearance and a family member or patient has said that they're not comfortable with this, so we've pulled the segment. It's their life and it's their right."
Performing for the Camera
One of the potential problems with having a camera operator trail around after public safety personnel in the field is the "pressure to perform for the cameras," Stuart said. Stuart is representing the parents of a young man whose body was discovered in his apartment by police. Video shot on scene was then featured in a "reality" television program. One officer who was wearing a cordless microphone called the parents of the young man to inform them that their son was dead.
"This was the worst moment of their lives," Stuart said, "and if you watch the video, you can hear the audio engineer pumping up the volume so that he can capture the sounds of the parents' voices coming through the receiver." Not only were the parents unaware that the phone conversation was being recorded, which is a "violation of eavesdropping statutes," the act of informing the parents by phone about their son's death violated basic protocol. "Police are not supposed to make the notification of death," Stuart explained. "The coroner's office is supposed to do this, and they don't do it by telephone. They do it in person. In this situation, however, apparently motivated by the potential for drama with the camera rolling, the police officers made the call right from the scene of the death."
The parents filed suit not for "financial gain", Stuart said, but out of a desire to set some boundaries. "We offered to give up our right to monetary damage for invasion of privacy in exchange for an agreement from the city to enact a policy that would protect future victims. As a condition of doing a ride-along, media representatives would be required to obtain written consent from victims and their families before utilizing anyone's image or voice recording in a broadcast." Because city attorneys never responded to the offer, the parents were forced to file suit and the case is ongoing.
An Endless Brush with Death
High profile events that are captured by news cameras often jettison victims into a painful and sometimes embarrassing realm of "perpetual replay". When 13-year old Megan Cole waded into a flood-swollen wash in Los Angeles to try to save a friend who had been swept downstream, news cameras were on scene immediately to capture the dramatic swiftwater rescue and air it "live". A media frenzy ensued. "Being inundated by the media was tough," Megan's mother, Deirdre Cole, said. "First it was the news media. Then by the third day the talk shows were calling. We were not seeking publicity. This happened. The girls were rescued. And we wanted to show our gratitude to the people in the fire department who rescued them. Period."
News footage of Megan Cole's rescue eventually wound up in a number of rescue documentaries. "This footage has been used over and over again, with or without Megan's permission," Deirdre Cole sighed. "I feel like the news stations should have to ask permission before they sell their footage to an entertainment or documentary program. That's Megan's face up there! Covering the news is one thing. But do they have a right to own this piece of my daughter's life forever?"
9-1-1 Tapes: Where to Draw the Line
Using 9-1-1 audio recordings and radio traffic on the news and in documentary and reality programming poses a unique set of challenges. Guidelines for obtaining access to 9-1-1 calls vary from state to state. According to Barry Furey, Executive Director of the Knox County Emergency Communications District, "Tennessee is a fairly liberal state with regard to the release of information. If the release of a 9-1-1 tape does not impede an ongoing investigation, we are obligated to release it, because it falls under the Tennessee State Freedom of Information Act. In some cases I may have a moral concern about the release, but unfortunately that is overshadowed by my legal obligations to release the information."
In an attempt to better protect traumatized victims calling 9-1-1, several states have refined the definition of what "information" falls under the Freedom of Information Act. Nancy Pollock, Executive Director of the Metropolitan 9-1-1 Board in St. Paul, Minnesota, noted that, "Anybody can request a copy of a 9-1-1 call, but you don't necessarily have to provide them with the audiotape. You may have to provide them with a written transcript. In Minnesota there is a law that states that a transcript of the call is public data, but the actual tape, including the emotion with which the message is given, is private data."
In the State of Pennsylvania, 9-1-1 calls are exempt from "right to know" statutes, although there is an on-going legal battle to make them public. Roy Hyatt, 9-1-1 Communications Coordinator for the Dauphin County Emergency Management Agency has taken a very firm stance. "We play hardball with 9-1-1 tapes," he said. "Our view is that 9-1-1 tapes belong in criminal court only. We do not release them for any other purpose. Most incidents involve a person's greatest tragedy in their lifetime and they don't belong on the radio or television."
Hyatt cited the recent death of the wife of actor William Shatner, who hosted the popular "Rescue 9-1-1" television series, as an example of how the release of 9-1-1 tapes to the media can heap pain upon an already tragic situation. "If William Shatner's wife had died here in our county and we had taken that call, we would not have released that tape," Hyatt said indignantly. "Why would you want to release something like that on national television? If he had wanted to, William Shatner could have explained what happened in his own words. This is a new kind of voyeurism, the voyeurism of personal tragedy, and I do not support it at all."
"The commercial use of 9-1-1 tapes does not fall under the 'right to know' statutes," added Tim Bladwin, Deputy Director of Lancaster County (PA) Communications, "so television production companies cannot demand them. Before we would release any 9-1-1 tape or radio traffic communication, we would ask permission from the departments involved and the people involved. Whether it's a police officer, firefighter, or dispatcher on the radio, or a citizen who has placed a 9-1-1 call, people should be given the courtesy to say yes, you can release my part of the call to this television show. It's the right thing to do."
Beyond the complex legal and moral issues, protecting the integrity of the 9-1-1 system is a major concern. "There is a fear that if people are subject to having their most private, grief-stricken, emotionally vulnerable moments made public by the media, they may be less inclined to dial 9-1-1 when they really need it," explained Jennifer Hagstrom, a former law enforcement dispatcher who now works with the Association of Public Safety Communications Officials (APCO). "People need to have faith in the service and trust that they are not going to become victimized a second time through the media,"
The Bottom Line
Many programs that air on the Discovery and Learning Channels and other media outlets are well received both by survivors, who are featured in them, and public safety agency personnel, who frequently draw on them for their training and public relations value. "There are some shows out there that are very inflammatory and take advantage of people in vulnerable situations," explained Bronagh Mullan, "but that's not what the Learning Channel is about. We want our programs to be educational, not some kind of expose that goes beyond the realm of human decency."
When dealing with the media, Antony Stuart advised that agencies should set specific boundaries for the protection of the public and to ensure the integrity of the system. "The media is not entitled to every telephone call or moment on scene that can be captured by video cameras," Stuart said. "If the media wants to challenge this, as an attorney, I would argue strongly in favor of the municipality that this is private information and should be protected."