Criminalizing Certain Social Media Conduct

In August 2009, Cathy Bates was killed in a car accident in Barnegat, New Jersey. One of the first responders to the accident scene took a photograph of Ms. Bates and posted the picture on Facebook, before her family was told of the accident. Following that incident, and to protect the privacy rights of accident victims, New Jersey made it a crime for first responders to distribute images of accident victims to the public, without the prior written consent of the victim or, if the victim is unable to consent, the victim’s next-of-kin.

Social Media Crime

“Cathy’s Law,” N.J.S.A. 2A:58D-2, makes it a disorderly persons offense for a first responder who knowingly discloses any photograph, file, videotape, record or other reproduction of the image of a person being provided medical care, or other assistance, at the scene of a motor vehicle accident or other emergency situation without written, prior consent. The statute also creates a private right of action to allow a person whose image is disclosed in violation of the statute to sue for actual damages, punitive damages, attorney’s fees and costs, and equitable relief. Posting such images on social media without consent would constitute a violation of this law.

At least one other state – Connecticut — has enacted a similar law. “Joshua’s Law,” Conn. Gen. Stat. 53-341c, makes it a crime punishable with a fine or imprisonment for up to one year if a first responder (a) takes a photographic or digital image of a person receiving medical assistance without consent or (b) transmits, disseminates or makes such photographic or digital images available to third persons without the consent of the person receiving medical assistance.

These two statutes suggest that public employers should not only consider adopting policies to protect the privacy of members of the public, but also impress upon their employees the seriousness of such a policy, because, in addition to violating state privacy laws, the posting of images on social media without proper consent could, under certain circumstances, violate HIPAA – the Health Insurance Portability and Accountability Act of 1996, a federal statute that establishes standards for maintaining the privacy and security of certain health information and imposes severe civil and/or criminal penalties for HIPAA violations.

For any questions relating to this article, please contact Robert B. Nussbaum, Esq., at Saiber LLC.