Given this blog’s been going for nearly 8 years, it’s not surprising that issues continue to return. This question involves taking photos at an emergency scene. I’ll answer the question briefly but refer to earlier posts for more details and legal references.
My correspondent is from NSW who responded to a motor vehicle accident with persons trapped. My correspondent asks about:
… service operators taking photos of the scene. Service operators I define as Police, Fire, Ambulance, SES, VRA etc.
The other day we were called to a MVA persons trapped. A photograph was taken of the overall scene showing the overturned vehicle’s roof an SES vehicle and police rescue truck, no distinguishing features of any of the members present or anything relating to the victim or number plates etc.
- Is there a law not permitting this?
- Can this photo be published?
- Can a phone and the image be subpoenaed (taken) by police on request?
The short answers are:
- No, there is no law that says this action is ‘not permitted’. There may be internal agency policy on the matter. Note in this context the photographic policy in Appendix B to the NSW State Rescue Policy. That policy says, inter alia “All photographic images taken at a rescue incident are considered to be the property of the NSW Police Force in the first instance.” It doesn’t say who considers the photo to be the property of the police, but it’s clearly not an accurate statement of the law (see the posts referred to below).
- Yes, the photo can be published – again there may be internal policy issues and there could be issues about who owns the photo so if it was taken by a media officer for the purposes of the agency the photo will be owned by the agency, not the photographer (for details of ownership, see, in particular, Taking Photos Whilst On Duty with the NSW RFS – Amended (October 26, 2013)). Putting those issues aside, as a general rule, the owner of the photo can do what they like with it.
- A subpoena is a court order directed to a witness requiring them to attend court and give evidence or produce a document. If there are court proceedings the police or Crown (depending on the nature of the offence) could subpoena the person who took the photo and require them to attend court and produce it. If court proceedings have not commenced, eg the matter is still being investigated, then the police can of course ask for the photo but there’s no obligation to hand it over unless they have a relevant search warrant. Police cannot seize the camera or the photo unless that is required to secure the evidence as a matter of urgency (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 95 ‘Crime Scene Powers’) or the photographer has been arrested (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 27 ‘Power to carry out search on arrest’).
For more details, see:
- FEBRUARY 2, 2016 – BYSTANDERS PHOTOGRAPHING AN EMERGENCY
- SEPTEMBER 25, 2015 – POSTING PHOTOS ON SOCIAL MEDIA AS A COMMUNITY WARNING (VICTORIA)
- FEBRUARY 23, 2015 – TAKING PHOTOS, RECORDING SOUND
- JANUARY 9, 2015 – TAKING PHOTOS ON THE FIREGROUND IN SOUTH AUSTRALIA
- OCTOBER 26, 2013 – TAKING PHOTOS WHILST ON DUTY WITH THE NSW RFS – AMENDED
- AUGUST 24, 2012 – US LEGISLATION ON TAKING PHOTOS AT EMERGENCY SCENES
- AUGUST 6, 2011 – THE USE OF PHOTOS TAKEN AT ACCIDENT AND EMERGENCY SCENES