[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

• Background
• Structure Of The Study Paper

1.Introduction

1.1 COVERT FILMING, where it involves a person making a surreptitious visual record of another person in intimate circumstances without their consent, is a problem that has afflicted many overseas jurisdictions. In New Zealand, there have been instances of the use of miniature cameras, cell-phone cameras and other devices to record women and children visually in circumstances of undress or intimacy, without their knowledge or approval. In addition to the concerns caused by such secret filming, the potential publication of the images also raises issues for concern.

1.2 Neither the activity of covert filming in intimate circumstances, nor the subsequent distribution of the images is expressly dealt with in current legislation in New Zealand. The Commission was asked by the Minister Responsible for the Law Commission in its Terms of Reference:

... to review issues relating to covert filming and make recommendations as to options for law reform. In particular, the Commission is to consider covert filming involving the taking of a visual record of another person without their approval in situations involving nudity, partial nudity, or physical or bodily intimacy where people have a reasonable expectation of privacy, and the subsequent use of any such record.

1.3 In addressing this reference, the Commission was mindful that it had arisen in the context of concerns about cell-phone cameras being used in changing rooms, and concerns expressed by Parliament’s Government Administration Committee as to the need for amendment to the Films, Videos, and Publications Classification Act 1993 to ensure it covered covertly filmed images involving nudity.[4] We have, therefore, concentrated on covert filming in what might be termed “intimate” circumstances, in accordance with the emphasis of the reference. We have not focused on wider issues of covert filming.

1.4 Throughout this paper we use the term “intimate covert filming” to describe our particular area of focus. The words “filming” or “recording” include all forms of visual recording.

BACKGROUND

1.5 Overseas, particularly in the United States of America, intimate covert filming has become an issue sufficient to trigger a specific legislative response. The phenomenon seems also to have spawned its own lexicon denoted by expressions such as “up-skirt”, “down-blouse” and “video voyeurism”.

1.6 Intimate covert filming is often regarded as a contemporary form of voyeurism – the act of a person observing others covertly as they undress, undertake intimate bodily functions, such as using a toilet or showering, or engage in sexual activities, for the purpose of deriving sexual gratification. With the aid of modern technology, however, the actions of the “peeping Toms” of yesteryear can pose a significant threat to commonly held notions of privacy. The recording of the images seen by the voyeur for future personal sexual gratification, for sharing with others, or for commercial gain adds a new dimension to an old problem.

1.7 This particular form of intrusion into the privacy of another may take a number of forms, and may occur in a variety of settings. Some recent instances that have occurred in New Zealand include:

• discovery of images of two teenage girls getting changed before and after swimming and getting ready for bed taken by a video camera hidden in their bedroom;[5]

• a technician who, in the course of his work for a theatre group, installed a hidden camera in the dressing room of female performers;[6] and

• discovery of video footage of boys getting changed for swimming, which appears to have been shot using a hand-held camera from behind a one-way window.[7]

1.8 Examples of intimate covert filming reported overseas include:

• a woman trying on a swimsuit in the changing booth at a market stall whose daughter noticed a partially concealed camera;[8]

• a man who hid a video camera in his backpack with the lens exposed and then secretly aimed the lens up the skirts of a number of female sales clerks who sat at tables while assisting him;[9]

• a man who invited women friends to visit his home and then secretly filmed them when they used his bathroom;[10]

• a tanning salon proprietor in Missouri who surreptitiously videotaped more than 100 women while they tanned in the nude;[11] and

• a school principal who filmed cheerleaders getting changed with a video camera concealed behind a two-way mirror.[12]

1.9 The type of conduct involved has several common features:

• it is done without the knowledge of the person being filmed;

• it is done without their consent;

• it usually involves the concealment of the recording device; and

• it focuses on places and times where the subjects are likely to be nude, semi-nude and/or engaging in sexual activity or other intimate bodily functions.

1.10 The concern is not only with the surreptitious recording of another person in intimate circumstances where they have a reasonable expectation of privacy, it also extends to the possible publication of the image. Two obvious examples are publication via the internet and the use of cell-phones to record the image and then send it to others.

1.11 It is the use of, or access to, “high tech” equipment to facilitate the intrusion into the privacy of others that has prompted legislative intervention, or proposed intervention, in a number of overseas jurisdictions. While the law has generally been adequate to deal with traditional “peeping Tom” activities that involve the unaided surreptitious observation of others in circumstances of undress or intimacy, it has proven inadequate to meet the challenges to personal privacy posed by the recording of those observations and the circulation of them to others.

1.12 The context of intimate covert filming raises another concern. In many instances, the purpose of the recording is sexual gratification for the person making it. In some cases, the seizure of the recording by law enforcement authorities has resulted in the discovery of other evidence disclosing criminal offending, such as offences against the Films, Videos, and Publications Classification Act 1993 involving children as subjects. Overseas, the occasional link with sexual offending has been identified.[13]

STRUCTURE OF THE STUDY PAPER

1.13 This study paper discusses:

• the nature of the harms caused by covert filming of people in intimate situations, and the distribution of such images;

• remedies available under current New Zealand law; and

• proposals for legislative reform to address this conduct.

1.14 Appendix 1 provides an overview of relevant New Zealand law, and appendix 2 outlines the relevant law in comparable jurisdictions.