Inside the Liability of Selfies

Episode Notes

Transcript

Lawyer 2 Lawyer: – Law News and Legal Topics

Inside the Liability of Selfies

11/15/2019

 

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Mitch Jackson: Taking a step back and shooting a selfie from the top of a building or a GoPro video from the — leaning over the front of a cruise ship or maybe you and I skiing at Mammoth and we kind of cross the ropes, we are out of bounds, we are someplace we shouldn’t be, but if it’s a well known spot to watch the sun setting in the High Sierras and Mammoth knows about that and they are still letting people hike over or ski over to that spot and something bad happens, are there any consequences?

 

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

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1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny Southern California.

 

I write a legal blog called May It Please The Court and have a book out titled ‘The Sled’ and another one ‘How to Get Sued’.

 

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Social media and the ubiquity of technology have created a culture where people feel compelled to capture a moment and immediately share it with their friends, family and followers. Oftentimes this takes the form of a selfie. A selfie is defined as a photograph that one has taken of oneself usually with a smartphone or a webcam. Unfortunately with the quest for the perfect selfie, some people have put themselves in extreme danger resulting in injury and even death.

 

According to a study in India’s Journal of Family Medicine and Primary Care between 2011 and 2017 some 259 people were reported killed worldwide in selfie related incidents. Drowning, falls, fires and automobile accidents have been just some of the leading causes of death according to the report, and today on Lawyer 2 Lawyer we will discuss the liability that has arisen around selfies, the dangers and risk people put themselves in to meet society’s obsession with capturing the perfect moment and what may need to change.

 

To do that, we have got a great show for you today. Our guest is attorney Mitch Jackson. He is a California trial lawyer who enjoys combining law, social media and technology to disrupt, hack and improve his clients’ companies, causes and professional relationships.

 

He is the Founder of the global LegalMinds Mastermind and has written a book, ‘The Ultimate Guide to Social Media For Business Owners, Professionals and Entrepreneurs’, and it was number one best seller on Amazon and a top number one new release in two separate categories.

 

Mitch also hosts his own podcasts, The Mitch Jackson Podcast and writes his own blog entitled The Streaming Lawyer, which you can find at streaming.lawyer.

 

And welcome to the show Mitch.

 

Mitch Jackson: Craig, thanks for having me on. I really appreciate it. This is going to be fun.

 

1. Craig Williams: I think so. Well, let’s talk about selfies. I mean when you and I grew up, and I admit I have looked at your website so I know we are roughly the same age, we didn’t have selfies and people weren’t certainly taking pictures of themselves with Polaroids or Instamatic cameras or anything along those lines. How did this come about, what happened, how did the selfie generation come about?

 

Mitch Jackson: That’s a good question. So I have got two kids, 25 and 19 — by the way Craig, my daughter just took the California Bar, she gets her results a week from Friday.

 

1. Craig Williams: Well, good luck.

 

Mitch Jackson: Well, thank you, I will pass that along. And watching them grow up, I think when you and I look back, we had family movies. I just remember how excited we would get when my mom or dad would take out the camera, film family movies and then show them with neighbors and friends, even though they didn’t want to watch our family movies.

 

And I think that same type of approach to videos, to photographs, as social media rolled out, the popularity of doing so has become so much more. It’s become easier to take pictures, and by the way, when we talk about selfies, I am actually talking about photographs, videos, anything you can take or shoot with your camera, with a GoPro camera, that’s what was behind the article and the blog post that I shared not too long ago.

 

(00:04:51)

 

If you don’t mind, I can just share a real quick story that kind of gives context to all of this Craig. I was down at Strands taking a run, it’s next to Salt Creek, down here in South Orange County and I looked over and I saw a couple of people at the far south end of Strands climbing on the rocks to take a selfie. And there was a big red sign that said, high tide, stay off the rocks.

 

I happened to know that the bluff to the left is where rocks fall off and I am looking and I am actually watching part of the bluff fall off in a ravine behind them; they couldn’t see it, while they are out there trying to take that perfect selfie, which probably took one to two hundred shots, right?

 

A lifeguard drove down the beach, turned around at the end, never stopped, never got out and said anything to this couple, maybe he didn’t see them, but it got me to thinking as a trial lawyer, wow, who is responsible if one of these individuals gets hit by one of these falling rocks, why didn’t the lifeguard, and who controls the beach, the city, the county, the state, depending on where you are located, who is in control, management and control over people not paying attention to signs, and it just got my mind thinking.

 

And once my mind started thinking, I made the mistake of trying to put those thoughts into writing in a blog post, and as we have talked about before the show, a lot of different things came up with respect to legal obligations, liability, theories of liability, what can we do to protect ourselves when taking selfies. So it’s an interesting time, isn’t it?

 

1. Craig Williams: Well, let’s take a look at that, because let’s — for example, there is one that I have seen on the Internet which is funny, perhaps sadly so, but there is a woman who is walking, texting, paying attention to her phone and not paying attention to where she is walking, which is somewhat similar to what you are talking about and she stumbles and falls face first into a fountain. I mean whose fault is that?

 

Mitch Jackson: Sure, it’s distracted walking, right, and you and I both are trial attorneys and I looked in and approached this topic not really from the perspective of a trial lawyer, but I am just interested in social media, I am interested in the phenomena of GoPro videos and people taking selfies. And so what I thought to myself is first of all, I think the whoever is taking the selfie probably has a primary responsibility to do so in a safe and lawful fashion, so it’s not to subject themselves or other people around them to an unreasonable risk of harm. I think that’s probably the general premise, at least under California law, and by the way —

 

1. Craig Williams: That seems a pretty good safe torts definition right there. We could use that in first year law school.

 

Mitch Jackson: You know, and what I have noticed is what goes online, what happens online, whether it’s rights, liabilities, legal theories, normally there is a foundation to what you and I have been doing offline. What works offline probably applies to online. And although I am a California lawyer, I am not the lawyer of anyone listening to the podcast, no legal advice is being given, but I do have some thoughts, some ideas about selfies, the world of selfies and some things that I think people should just take into consideration before placing themselves at risk with trying to take that ultimate selfie.

 

Did you see the photograph of the young lady standing on the ledge on a cruise ship trying to capture that ultimate selfie?

 

1. Craig Williams: Banned for life because of that. And then there was another woman who was in I believe Thailand or someplace in the Far East, where her boyfriend was in the no horizon pool and she had kind of hung herself outside the pool with a precipitous drop beneath her. I mean those kinds of things seem to be just inherently dangerous and in our torts definition I think those individuals may be stuck with the liability. What’s your sense of that?

 

Mitch Jackson: I am okay with that. I think so too. I think you have to assume responsibility for the decisions that you make. You are talking to somebody that grew up flying hang gliders, riding and racing motocross for 38 years. In fact, I used to ride with some local judges and lawyers that you probably know here in Orange County and I am a firm believer and I love those types of sports.

 

I also have no problem with assumption of risk, with signing waivers and releases. When I intentionally and knowingly participate in one of those sports or activities, then I am assuming the risk and I have no problem with that, because I like to do those types of things.

 

1. Craig Williams: I bet you ski too, don’t you, you probably snow ski?

 

Mitch Jackson: I can’t wait for the snow to hit the ground and head up to Mammoth, really looking forward to it.

 

1. Craig Williams: Right. And we have seen these tickets that say, you assume the responsibility, ski out-of-bounds and you are in trouble and every year we will read a case that somebody sues a ski resort and they lose, because it’s a large assumption of the risk in that case.

 

Mitch Jackson: Absolutely.

 

1. Craig Williams: But in selfies, is there really any kind of a warning that comes with the phone that says don’t be stupid?

 

Mitch Jackson: I am not sure that there is, but let’s take it one step further, let’s say you have a piece of land that has a beautiful sunset backdrop that happens to be a cliff or a sharp edge that the consumer or pedestrians routinely will go out on to shoot that ultimate selfie, and you either know or should know that the edge of that cliff is breaking away, it’s decaying, it’s falling apart, a little bit more each and every week or month.

 

(00:10:12)

 

Do you as the owner of that land have an affirmative obligation to warn the general public of that unstable land? Do you have an obligation to put a fence up? I mean I don’t know the answer to those questions, but my experience down on the beach did start getting the wheels in my brain to start turning. And Craig, I have never been accused of being the brightest bulb in the lamp, but on this particular issue I thought to myself wow, we have liability issues for landowners, we have liability issues for people participating in selfies, if you were taking a shot of you and I standing at some place where it’s not safe, maybe out in the middle of the 405 Freeway, maybe we are standing up at the top of Mammoth on a dangerous run, who is responsible for placing me in that position so that you can take the ultimate selfie?

 

1. Craig Williams: Well, you know, you got there and perhaps in the skiing circumstance we all know that beginners don’t belong at the top of the mountain, but when you talk about landowners, certainly the state has taken the lead, traveling up and down Pacific Coast Highway, I am sure you have done it as well as I have, we have seen those bluffs and those cliffs with fences and with warning signs that the state puts up.

 

So presumably if the state does it, individuals would likewise have to do it, and you can’t create a more dangerous situation than already exists and that’s perhaps some of the issues you are talking about.

 

Let’s talk about kids, what happens when a child, underage, takes a selfie and gets injured, does the reliability rest with the parents or do we still follow the same liability issues with the potential risks of what the landowners may have created?

 

Mitch Jackson: I think that the general negligence theories offline that apply to children and the standard of care and duty probably would apply to you and I allowing a minor or a child or a teenager or even an adult to have access to a location where selfies are known to be taken; maybe it’s the roof of a tall building and access to that roof, maybe you have an attractive nuisance type of situation where you know as the landowner people want to jump over the fence so that they can have their picture taken next to an attractive nuisance, and so the question arises, who has the ultimate duty or responsibility to protect from known and unknown unsafe situations.

 

Now, obviously every cause of action that I have looked at, every jury instruction, there is an affirmative defense, especially here in California, with assumption of the risk, with comparative negligence and it’s just interesting to me to see how all of these things play together with selfies.

 

Selfies from the edge of a cliff, GoPro videos that everybody is watching on YouTube and what I was going to get at with Extreme Sports is, Craig, there is something about when you strap a camera on your chest or on your helmet, you start to do stupid things.

 

1. Craig Williams: And you become more brave.

 

Mitch Jackson: I don’t know what it is, but nothing good ever happens, at least when I have done that, and so when you are doing that, are you doing that on your own volition, are you doing that because somebody else is telling you to do that, are you an employee of a company who is being told to go out and shoot selfie videos while you are rafting down a river, while you are doing a ski run down the Moguls, while you are jumping off of Lake Elsinore in a hang glider, there is employee-employer issues, there is assumption of risk issues, and when you are dealing with public or governmental property, then you have got the immunity issues.

 

And it’s just something that fascinates me and I don’t see it going away. In other words, social media is new. Regardless of how comfortable and familiar all of us are with social media, we are just getting started, and people are using their phones, they are using their GoPros, they are using their handheld devices to shoot more photographs, more videos. The new iPhone rolled out with a couple of different lenses, more abilities to take photographs than ever before.

 

1. Craig Williams: And let’s talk about that. Let me interrupt you for just a second.

 

Mitch Jackson: Absolutely.

 

1. Craig Williams: Because you prompted the idea of the phone manufacturers or the camera manufacturers, here you have got GoPro that can go down past the depths that a scuba diver can safely go to, you have all of a sudden got a camera on your phone, but it turns around, so you have got a backward facing camera, so you can take a selfie.

 

I have a Samsung mobile phone, like one of the newer ones and I don’t recall seeing any kind of warning in there as I accidentally hit that button to take a selfie and it turned around and faced me. Do the manufacturers have some liability here?

 

(00:14:59)

 

Mitch Jackson: I’m going to take the position that they don’t. I’m okay with their not being a warning as to any perceived liabilities when it comes to selfies. I think there’s a certain level of self-responsibility. It’s like distracted driving and maybe we could roll over to that because I think that’s a good analogy.

 

Chevrolet, Toyota, other major automobile manufacturers, do they have an obligation to warn us not to take selfies while we’re driving down the street. I’m a strong advocate of the dangers of distracted driving and helping raise awareness as to the dangers of distracted driving. So I’m in that camp that it’s just I have zero tolerance for anybody doing this. I don’t think it’s really an automobile manufacturer’s job to provide a warning that taking selfies can be dangerous.

 

However, I do feel that there should be a warning, letting people know that when they are looking at their dashboard and they are playing around with all the digital tools that they are interacting with, that that might be unsafe to take your eyes off the road and that’s a whole another conversation. But when it comes to selfies, how many time have you driven down the freeway and watched somebody looking down at their phone or shooting selfies with their friends while they are in a moving vehicle?

 

I mean, that’s just crazy, and I don’t think that’s really anybody’s fault, but the driver of the vehicle.

 

1. Craig Williams: And there is accident after accident with it too. There’s this great statistics of car accidents from people with distracted driving, the number one being texting.

 

Mitch Jackson: Unbelievable. When you look at eight to ten people a day, 600,000 people a year injured because of distracted driving and that’s just the reported cases, that’s two to three times the number of injuries than from drunk driving. What a lot of people don’t realize is every second during daylight hours in the United States you have 500,000-600,000 people driving around with some type of smart device in their hand at 55 miles an hour looking down at your phone which normally takes three to five seconds while texting, you’re travelling the length of about a football field, blindfolded. It’s just crazy.

 

So taking a step back and shooting a selfie from the top of a building or a GoPro video from the leaning over the front of a cruise ship or maybe you and I skiing at Mammoth and we kind of cross the ropes, we’re out of balance where someplace we shouldn’t be, but if it’s a well-known spot to watch the Sun setting in the High Sierras and Mammoth knows about that, and they are still letting people hike over or ski over to that spot and something bad happens, are there any consequences, are there any ramifications. I know you’re a defense attorney or you’ve done some defense work I’m sure you can think of plenty of defenses including assumption of the risk and comparative negligence.

 

So it’s an interesting time and we’ll see how this technology develops and we’ll see how the human psychology evolves with respect to appreciating the risk that sometimes take place when we’re shooting selfies.

 

1. Craig Williams: Well, we need to take a quick break and before we move on to our next segment we’ll hear a message from our sponsors, we’ll be right back.

 

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Mitch Jackson, California trial lawyer who has written a book, ‘The Ultimate Guide to Social Media for Business Owners, Professionals and Entrepreneurs’.

 

We’ve been discussing the liability of selfies, and we’ve talked about a number of defenses, assumption of the risk, attractive nuisance, and a couple of other issues, but have you seen anything anybody trying to invoke waivers in this whole issue of liability for selfies?

 

Mitch Jackson: So I have and I think what we’re seeing are a lot of recreational exports companies where you’re whitewater rafting, where you’re rock climbing in Yosemite, where you’re riding and racing motocross in Southern California, what you’re seeing is photography, selfie language starting to be included in the written waivers and releases because it does add an additional risk factor to whatever you’re doing. It’s one thing to climb in a rock wall. In Yosemite, it’s another thing to do so with a specific intent to shoot GoPro video or selfies. It’s a different type of activity.

 

(00:20:27)

 

So they are starting to include, Craig, specific paragraphs in these waivers and releases that address and focus on selfie conduct, whether it’s video, photographs or any other selfie-type of activity. And I find that fascinating, because fast-forward another five or ten years and we’re going to be talking about this same topic except we’re going to be speaking about virtual reality and mixed reality and augmented reality, and people will be shooting 360 real-time video, 360 photographs just like we’re speaking — we’re talking about and it’s going to take things to the next level.

 

And it’s going to bring in into the selfie by the way intellectual property protected content, different things in the background, different audio and video noises and sounds that are protected by copyright, yet people are taking selfies and putting this out into the public domain. What are the consequences of that? What are the damages? What are the rights and remedies? So it’s fascinating to watch this happen in real-time.

 

1. Craig Williams: So, are we seeing an uptick of litigation when it comes to selfies, are people starting to sue over this and try and blame someone else for falling down a hill if that’s what happened?

 

Mitch Jackson: I haven’t and I sure hope not. That’s just not the way I roll in our practice, I know you don’t either, and I think we have to assume responsibility for our actions. I will tell you that I am seeing more distracted driving, injuries and wrongful death cases that may or may not have to do with the improper use of a smartphone or smart device and oftentimes, it involves live-streaming selfies where the drivers are showing themselves that they’re flipping the screens around, they’re showing their speedometer while the music’s blasting while they’re driving down the freeway at 120 miles an hour and they’re doing that for attention, they’re doing that to get more views on the YouTube channel. And eventually what they’re going to find is themselves as a named defendant in a civil case or criminal defendant in a criminal action.

 

1. Craig Williams: And you mentioned the YouTube channel and that brings up the question of what potential liability the social media sites have for this type of thing. I mean, obviously some of these are monetized, kind of on the lines of America’s Funniest Home Videos and certainly YouTube benefits from people putting up these types of selfies in these dangerous stunts. What liability do the social media sites for encouraging this kind of behavior, and potentially paying for it?

 

Mitch Jackson: That’s an interesting question. It’s almost the question of the day when it comes to politics on social media; in advertising what is or isn’t allowed, which once again is a different topic for a different time. I would suggest that from my perspective, what might be dangerous for you and I might be as easy to do as someone looking at the back of their hand for someone else.

 

In other words, it depends on who you are and what you’re doing and I don’t really have a problem with the social platforms making it available — making it easy for all of us to share interesting, useful and valuable content. The question is, when does that content become harmful or dangerous and when does the need to raise revenue override the ability of these platforms to ban certain content.

 

I think what’s interesting is when you see content being shared on these platforms where you’ve got one individual encouraging another individual to hurt themselves or to commit suicide and at what point does YouTube step in or Facebook step in and say we’re not going to allow this content to exist.

 

When the content rises to that level, I personally have no problem with the platform blocking it and banning it but when it comes to exports, when it comes to people sharing fascinating and interesting and “unique selfies”, I’m all for it, I think it’s fun, I like the activity, I think it’s fun to watch people enjoy themselves. But it does raise new issues in our profession, in the legal world, as to who has the responsibilities, the duties, the obligations, both good and bad, when it comes to positioning, creating and sharing selfies.

 

(00:25:02)

 

And I really can’t wait to see which direction this topic, the legal issues, the development of the law takes when it comes to selfies. I certainly don’t have the answers but I know what questions to ask and I’m curious to see how all of this pans out.

 

1. Craig Williams: Well, almost to encapsulate what you’re saying and I don’t mean to just reduce it down to something but basically “it’s don’t try this at home” and there are different levels of people, there are certainly athletes that can do things that you and I can’t do and perhaps you and I can do things that other people can’t do, and are certainly different abilities across the spectrum of people.

 

But when you see someone on a readily accessible BMX bike, do a triple flip over a – in a BMX-type of a situation, does the kid at home who tries to imitate that and then becomes a paraplegic because he’s now snapped his nature, where does that liability sit?

 

Mitch Jackson: I personally don’t think there would be liability. I think what’s happening is especially in sports as you’ve got young athletes watching and they have access to how to throw a football and how to ski down — ski run, unlike ever before and it’s really raised the bar on athletic performance, on building confidence and a young man or woman being able to watch what the best in the world are doing and think to themselves “I can do that too”.

 

From a selfie standpoint, if you remember the blog post I shared, there was a young woman, just dangerously positioned at the edge of a thousand foot cliff with her hands up in the air and her friends taking her selfie, and for me, that’s what I’m focused on is when that happens what responsibility lies in the person who actually is setting up and posing for the selfie? How about the owner of the land that’s making that dangerous cliff selfie available, and if it’s public property or if it’s a paid excursion with an adventure type of company, who bears the risk, who bears the burden, who bears the liability under those circumstances?

 

I think, Craig, you’ll agree with me, it probably comes down to contract law, it probably comes down to written waivers, assumption of risk documents and disclaimers, and once again, I’m okay with that. The general public just needs to understand and appreciate the fact that there’s a new phenomenon going on out there that may or may not be placing the average citizen at more risk and they’re not realizing it because you get wrapped up in the moment and you don’t appreciate the danger that you are potentially exposing yourself to at the same time. So we’ll have to see what happens.

 

1. Craig Williams: All right, well and maybe my next question steps into the criminal arena, but certainly taking a picture of your body parts that men have been known to do and the sexual nature of that and child pornography and all those types of things that play into the criminal side of selfies. Certainly there’s a different kind of liability there but where are you seeing issues arise on that criminal side?

 

Mitch Jackson: I haven’t thought about that but you’re absolutely right. Boy, that’s just another selfie approach. So I’m happy to say that I know in California, we’ve had a couple of new statutes come down, extortion-related statutes and statutes that address the issue you just brought up, codifying the fact that it’s a criminal act and people can be prosecuted for that.

 

For any of the lawyers listening to this podcast, I think the big challenge comes down to both from a prosecutor’s standpoint, a criminal defense attorney’s standpoint, it comes down to authentication and foundation under our evidence code and so it’s really important that if something like that happens document it, screenshot it, for attorneys that are litigating make sure you’re crossing your t’s and dotting your i’s with foundation and authenticity issues because if somebody posts something on YouTube and by this time, you see this video it’s been downloaded and posted on two or three other platform and it’s that third platform that your client sees and wants to bring in action on, that’s three steps away from the original video. It could have been altered, it could have been changed, it could have been modified, and you may have some admissibility issues. So, definitely pay attention to the evidence code when dealing with this stuff.

 

Circling back full circle, Craig, to the hypothetical that you just shared, when somebody does do that, I would love to see them be prosecuted and I would love to see that evidence that photograph be used to put them behind bars, I have no problem with that.

 

1. Craig Williams: In some instances, it has been. Well, Mitchell, it looks like we just about reached the end of our program. I want to invite you to share your final thoughts along with your contact information for our listeners, so we’ll give you a chance to wrap up.

 

(00:29:56)

 

Mitch Jackson: I can wrap up quickly. First of all, Craig, thanks for having me on. I appreciate and I enjoy your work. I’m listening to your podcast when I run. If anybody wants to connect with me just jump over to Streaming.Lawyer, that’s my blog where I share selfies, that’s where I share videos, and a lot of other social media content and I’m looking forward to connecting with your listeners.

 

1. Craig Williams: Great. Thank you very much. We’ve had Mitch Jackson talking about selfies today

 

Well, if you like what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.

 

I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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