Thursday, August 30, 2018
Article on Social Media Abuse in Long-Term Care Facilities: Why the Law is Failing to Protect Elderly Residents and How States Should Address It
Breanne Hitchen recently published an Article entitled, Social Media Abuse in Long-Term Care Facilities: Why the Law is Failing to Protect Elderly Residents and How States Should Address It, 49 U. Tol. L. Rev. 141 (2017). Provided below is an abstract of the Article:
In March 2016, state health officials in Iowa received a report that a certified nursing assistant for a long-term care facility shared an indecent photo of an elderly resident on Snapchat--with six of the nursing assistant's colleagues. The photo displayed the resident with his pants around his ankles, and his legs and hands covered in feces. Yet, the most disturbing part of the official's investigation was that the nursing assistant's actions were not against the law. Even though the elderly resident had dementia, and the humiliating photo was shared with a larger audience on social media, the state could not punish the nursing assistant criminally. The Iowa law intended to protect elderly adults from abuse in long-term care facilities had not been updated since 2008--before social media use exploded and mobile applications became available. The law would have applied had the resident's genitals been exposed in the photo, but that was not the case. Although the facility fired the nursing assistant, she can still be employed by any other long-term care facility in the state.
Social media use has had a profound impact on human communication and interaction. Using a smartphone, people are able to access social media platforms to simultaneously connect and share personal thoughts or photos with virtually anyone, at any given time. But the removal of communication barriers has led to a breakdown of personal barriers, causing people to over-share details about their personal, and even professional, lives. As a result, victimization through online public shaming has substantially increased. Taking an embarrassing or funny photo of a stranger and then sharing it on social media has become all too common. Yet, most people fail to perceive the harm done to the victim when embarrassing photos are shared online.
Unfortunately, between January 2012 and August 2016, there were 47 documented incidents of long-term care facility employees sharing photos or videos of elderly residents on social media. While these incidents are certainly humiliating and inappropriate, they are also abusive invasions of the resident's privacy. The harm that results from an invasion of privacy extends beyond mental anguish; social media abuse compromises the trust placed in facility staff by the vulnerable elderly residents and their family members.
Currently, most federal and state laws do not allow prosecutors to pursue justice for elderly victims in social media abuse cases. Although there are federal health laws that could potentially apply to nearly every reported incident, the appropriate federal agencies have not taken the necessary actions to enforce those laws, in spite of at least one U.S. Senator's calls for increased federal oversight in this area. Ultimately, states are left to oversee and investigate incidents that occur in facilities in their state. Many states, like Iowa, are quickly discovering that they do not have laws to adequately address privacy violations occurring in long-term care facilities. Moreover, state laws in this area vary considerably from state to state.
This Comment argues that current federal and state statutes and regulations do not adequately address social media abuse of elderly long-term care facility residents, and proposes that states should adopt criminal statutes to punish the act of capturing and disseminating inappropriate images of elderly residents on social media. Part II provides a description of the growth of social media, relevant types of social media used in elderly victimization, and the issues social media use has created in society, including increased victimization. Part III explains the status of the laws and regulations regarding elderly abuse in long-term care facilities and victimization through social media abuse. Part IV highlights how current federal and state laws and regulations are failing to adequately curtail victimization of the elderly, recommends preliminary steps that can be taken to meet that end, and proposes that states adopt criminal statutes to punish facility staff members that commit social media abuse. Part V concludes.