Filming emergency scenes as a bystander: a tortious duty for those who do not assist victims?

In light of the recent London terror attacks in which bystanders filming the incident both hindered and assisted police, debate has raged as to whether this type of conduct at emergency situations should be seen as acceptable – particularly as nearly every individual now carries a device capable of recording such scenes and uploading them onto social media instantaneously. Lecturer Amelia J. Uelmen, of Georgetown University Law Center, argued in a recent paper that the prevalence of bystanders filming or taking pictures of victims at emergency scenes requires the creation of a new tort: exploitative objectification of a person in need of emergency assistance. This would impose liability on those bystanders who film emergency scenes instead of assisting victims.

As Uelmen recognises, there is generally no common law duty to rescue. For example, a passerby has no duty to pull a drowning child out of a pool they are walking by. This ‘bystander effect’ is problematic in many cases: such as the infamous story in 1994 of photographer Kevin Carter taking a photo of a famine stricken young girl crawling towards a United Nations food camp in Sudan while a vulture lurks behind. Carter waited for twenty minutes for the vulture to be positioned close enough to the girl to take the photograph and deliberately kept quiet so as not to scare off the vulture, and after publishing the photo (and leaving the girl where she was) was subjected to widespread criticism for not helping the girl.

Uelmen’s argument to create a new tort is largely about the reaction a person has upon arrival to an emergency scene: that of filming or photographing the scene rather than stepping in to assist the victim(s). One of the examples provided is particularly nasty. Jose Robles was attacked on his way to work in New York in 2014, and when he fell to the floor he was repeatedly kicked and beaten. After this attack, Robles described that, at the time, many people were watching and ‘were having a good time filming’ without stepping in to help him.

These are horrific examples that, sadly, display the worst of human nature and reflect a society in which the recording and public replaying of our lives is becoming increasingly commonplace. Black Mirror, a British science fiction television mini-series created by Charlie Brooker, spends much of its air-time gazing into the future of developing technologies and where this may lead us. Two particular episodes strike a chord with this debate. In White Bear, a woman wakes up in an unknown place where she is under attack by several assailants and where almost every person she comes across is filming her as she gets attacked and refusing to help her. In The Entire History of You, a futuristic world is depicted where most people have ‘grains’ in their eyes which record everything they do, see or hear, also allowing them to play back this recording of their everyday lives at any future time at will. Terrifying. Allowing couples to replay their arguments really takes the fun out of debating (vigorously) who was right or wrong. While wanting to avoid spoilers, it is unsurprising that neither of these episodes ends well.

These crystal ball gazing problems aside, people can also put themselves in danger by attempting to capture an emergency situation where there is still a threat to their life. Indeed, human life must surely be the first priority in this discussion.

However, there are practical issues with imposing liability on individuals for recording emergency scenes. Namely, such film footage is invaluable for police and investigators following violent incidents. In the wake of the London Bridge and Borough High Street terrorist attack several weeks ago, police publicly appealed for photos and videos of the attack. This is often used as key evidence in putting together cases against alleged perpetrators. Indeed often those who film or photograph these incidents arrive at the scene after others who are already assisting the victim(s), and their involvement may only hinder medical assistance.

The capturing of incidents can also have other unintended but important social consequences: such as the bringing together of black communities in America in justified public outrage at the death of Eric Garner in July 2014 when police officers were filmed detaining Mr Garner on a public street by using a chokehold that lead to Mr Garner’s final words, ‘I can’t breathe’ and, as a result, his death. This unobstructed view of the incident gave the world unambiguous vision that, along with other similar deaths of black men at the hands of police, has ignited strong debate over race relations and law enforcement in the United States.

It is clear that there are problems associated with allowing the recording and replaying of incidents, particularly those that are violent, and that we must have a serious think about how we can avoid spiraling into a Black Mirror-esque dystopia (won’t somebody think of the children!). However it may well be that imposing legal liability on those who do film emergency incidents, even in narrow circumstances, deters others from filming incidents in future and leads to less-informed criminal investigations and less public accountability for those who perpetrate or aggravate violent incidents. Whether legal intervention, education or other responses may be the best path forward will require further research and discussion, but Uelmen’s article and the response to the London attack has started a debate that is well overdue.


2 thoughts on “Filming emergency scenes as a bystander: a tortious duty for those who do not assist victims?

    1. Thanks for the link and comment Michelle, I wasn’t aware of how restrictive the Good Samaritan laws in California were (arguably still are*, when they impose a higher duty of care on people with no medical or rescue expertise than on those who have expertise…). I remember years ago in Rome you mentioning how medical professionals in California pretty much can’t avoid lawsuits no matter how careful they are. It strikes me that if we impose liability on people for offering care, AND on people for not offering care, we are placing the law in an impossible position where it has to intervene each and every time. The court of public opinion might be the best way to dissuade people gawking at these scenes with a camera.


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