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Comment by ars | Hacker News Reader

So because it's news they have the right to film it?

Is there no expectation of privacy from news crews? I thought they could only film in public - a private hospital room should certainly not count.

Anyone have a copy of what the appellate court wrote? (Or can summarize their argument?)

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I'm not a lawyer, so take this with a grain of salt.

As I understand it, it's legally best to get signed papers from the people involved, or limit filming to public places. But there are ways to broadcast something even if it was filmed in a private area and you don't have permission of the person filmed. The most obvious thing to do is to blur out the person's face, which the show did here. I believe that there is an exception for "hot news" items (although this obviously didn't involve hot news) and there are always obvious arguments about freedom of the press.

This is mainly an area of state law, so the rules will be different across the US. The two big issues are right of publicity and right of privacy ( http://www.law.cornell.edu/wex/publicity , http://www.law.cornell.edu/wex/Privacy ). The hospital is apparently arguing that New York's right of publicity doesn't cover this case. I have no idea if that is correct.

HIPAA also comes into the picture (federal law, with many similar state laws). I'm certainly no expert on HIPAA, but it seems to me that the obvious argument would be that the hospital didn't release any private medical information, and if the hospital is held responsible for information revealed by the show, the "medical information" was along the lines of "he's dead" and not "he has an STD that he'd prefer to keep private."

This is a case where it's asking how the law applies, how the law should apply, and what kind of reaction the general public should have. The show was certainly insensitive to the family, and the hospital's reputation should take a severe hit. And that applies regardless of what laws might have been broken.

I am also not a lawyer. But I did once work in a health-related field and had to go through HIPAA compliance training. And the general issue is that simply blurring out a face isn't enough.

The definition of Protected Health Information (PHI) is interpreted broadly, such that the fact that a patient was in the ER due to an accident, received certain types of treatment and died is protected.

Meanwhile, the definition of what is personally identifiable (i.e., ties information about condition/treatment to a specific person) includes an 18-point list of potential identifiers; responsible practice is to remove all of these prior to making information public. That 18-point list includes both the geographic location of the treatment (should not be given in any form more specific than the state) and the date of treatment (should not be given in a form more specific than the year).

So I can see a strong argument that the hospital is on the wrong side of HIPAA here. And given that their argument seems mostly to be "it wasn't Our Hospital Medical Services, Inc., it was Our Hospital TV News Productions, Inc., and that one isn't covered by HIPAA", I'd begin to suspect they believe it would be a HIPAA violation for the hospital, too.

I didn't realize how broadly Personal Health Information applied. Thanks for the information.

Consider if footage existed of the deceased being hit by the sanitation truck – the original injury that sent Mr. Chanko to the hospital.

Could a news report about vehicle-pedestrian accidents use that footage, even without the victim's permission?

I suspect probably so, for its illustrative value. As a matter of sensitivity to viewers or the victim's family, they might blur any particularly gory details, or the precise identifying characteristics of the victim or others involved.

And that's roughly what they did in the hospital, too. The crew was filming in an area they had permission to, and blurred identifying details. A very small number of people – who knew the incident, the hospital, the doctor, the victim – could work out who was being shown. That's emotionally draining, perhaps, but I'm not sure it's legally tortious, and requiring a court-enforced remedy.

The hospital room may be private, but it's the hospital that can waive the privacy, not the patient (I believe).

Saying that, I've never worked with any producer that wouldn't see that as a huge red flag (although I haven't worked much in reality tv either in quite a few years).

It depends. From what I understand, in some states there are consent laws which prevent recording if both parties do not consent to it. It would appear that New York is not one of these states, but if this happened in my home state it would certainly be grounds for a civil suit.

http://www.dmlp.org/legal-guide/recording-phone-calls-and-co...

There are certainly educational benefits to filming ERs and frequently crews would not be able to get permission from patients prior to filming. So personally, I see no problem with the filming. But, before any viewings or editing of the recording, permission should be gained from the patient or –if the patient did not survive– the patient's family. In the United States, something like what happened to the Chanko family should absolutely be prohibited by HIPAA and the hospital should be severely fined!

> Anyone have a copy of what the appellate court wrote? (Or can summarize their argument?)

http://www.nycourts.gov/reporter/3dseries/2014/2014_07954.ht...

Argument seems to be that patient privacy is moot because the patient's right to privacy expired when he died. From the article:

"...the state does not recognize a common law right to privacy and... any privacy right Mr. Chanko did have ended upon his death."

Just googling "HIPAA death" seems to suggest the right to privacy extends 50 years after death:

"The HIPAA Privacy Rule protects the individually identifiable health information about a decedent for 50 years following the date of death of the individual"

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