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2.1 EXAMINATION of how the law should deal with the covert filming of people in intimate situations and distribution of the images requires an understanding of the type and level of harms caused by this conduct. The addressing of these questions will help determine the appropriate level and type of responses. The issue has both privacy and sexual dimensions.
2.2 As acknowledged by all who write in this field, the concept of privacy is notoriously hard to define. Although it is not necessary for us to develop a definition, it is helpful to consider the value that individuals and society ascribe to privacy. Discussions of the topic almost invariably identify privacy as an essential element in fostering and preserving the dignity, autonomy and freedom of the individual.
2.3 The Law Reform Commission for Ireland, in its 1998 Report on Privacy: Surveillance and the Interception of Communications, summed up contemporary views on the value of privacy. First, it is closely connected to the inherent dignity of the person: “The intimacies of private life go to the very core of what it means to be human”.[14] Secondly, privacy is closely related to human freedom, autonomy and self-determination. It provides the space necessary for personal growth and development and for the exercise of freedom, including the “freedom to select which aspects of one’s personality should be shared with others and on what terms”.[15] Privacy provides the space to establish and develop relationships with others, another key element of personal growth. It is one of the values that helps to prevent autonomous human beings from being turned into objects or things.16
2.4 Both the Irish Law Reform Commission and the Law Reform Commission for Victoria also identify the social value of privacy. Social organisation relies on the ability of individuals to be fully functioning human beings, which is assisted by the ‘shield of privacy’. The Irish Law Reform Commission points to “the implicit social contract in every society” that some form of sanctuary from everyday life is needed for society to function in a peaceful and orderly manner,[17]and argues that privacy contributes to “the democratic life of the polity” in two key ways. First, democracy rests on the dignity and inherent self-worth of all human beings. Secondly, those who wish to contribute to public life need “assurance of some secluded space away from public gaze”.18
2.5 The Victorian Law Reform Commission highlighted that breaches of privacy will affect more than the individuals concerned, quoting Margaret Otlowski: “Consideration must be given to the cumulative effect of the invasion of an individual’s personal sphere and the impact that this has on society as a whole”.[19]
2.6 Protection of privacy will not, of course, be absolute. While privacy contributes to other fundamental values for individuals and society, including freedom of expression, freedom of thought, conscience and religion, and freedom of association, it must also be balanced against such values. Society depends on a
certain degree of privacy for individuals, but it also depends on social interaction
and the ability to function freely in public.
2.7 Privacy contributes significantly to people’s right and ability to be fully functioning human beings and thereby assists in the functioning of civil society. What then is the impact on the individual and on society of covert filming of people in intimate situations and subsequent distribution of the images?
2.8 Covert filming robs individuals of the freedom to choose how they present themselves to others. Because they do not know they are being filmed they cannot adjust their behaviour to minimise the intrusion and control how they are viewed. The United Kingdom Report of the Committee on Privacy (“Younger Report”) commented: “Visual surveillance is even more offensive when it is surreptitious. Unless the victim conducts himself always on the assumption that he is being watched, he can take no steps, even unwelcome ones, to shield himself”.[20]
2.9 Surreptitious filming typically reduces people to the objects of another’s gaze, and if the images are distributed, particularly on the internet, the subjects become the objects of many people’s gaze. Often the filming involves parts of the body only, which intensifies the objectification of human beings for others’gratification. The Irish Law Reform Commission opened their Report on Privacy: Surveillance and the Interception of Communications, with a quote that aptly sums up these impacts of privacy invasions: Watching people against their will ... forces them to see themselves and their plans through the eyes of another, as object rather than subject, undermining their self-respect and evincing a lack of respect for their freedom to make choices without pressure from the outside.[21]
2.10 Covert filming of people in intimate situations violates the arguably fundamental desire of human beings to control exposure of their own body. As Rothenberg argues, the significance of such control is illustrated by the “acute degradation inherent in non-consensual disrobing that often occurs in situations of war, imprisonment, and rape”.[22] Frequently, the video voyeur exposes the very body parts and the very acts that individuals most want shielded from public view.
2.11 “Up-Skirt” videoing is a self-explanatory term for covertly taken images, with the filming usually occurring in a public place such as a shopping mall. A variant on this is “down-blouse filming”. This paper uses “up-skirt videoing” to cover both terms.
2.12 The conventional view is that an individual abrogates his or her right to privacy once the individual ventures into a public place. In the course of his judgment in Hosking v Runting, a case involving potential publication of a photograph of the appellants’ children that had been taken, without consent, in a public place, Gault P noted that “[t]here is a considerable line of cases in the United States establishing that generally there is no right to privacy when a person is photographed on a public street”.[23] Gault P did, however, go on to note that there may be exceptions to this rule, referring to Peck, a case concerning the publication of photographs taken by closed circuit television cameras of a man who tried to commit suicide in a public street, and “perhaps” Campbell, a case concerning the publication of photographs of model Naomi Campbell leaving a Narcotics Anonymous meeting.
2.13 A degree of public privacy was recognised by the Alabama Supreme Court in Daily Times Democrat v Graham.[24]The local paper published a photograph of a woman whose underwear was inadvertently exposed when air jets at a fun fair blew her dress up over her head. The Court held that this constituted an invasion of the woman’s privacy. The United States Restatement of the Law, Second, Torts states that:
Even in a public place, however, there may be some matters about the plaintiff, such as his underwear, or lack of it, that are not exhibited to the public gaze; and there may be invasion of privacy when there is intrusion upon these matters.[25]
2.14 Similarly, in New Zealand in Bradley v Wingnut Films Ltd it was held that there may be circumstances where “the fact that something occurred or exists in a public place does not necessarily mean that it should receive widespread publicity if it does not involve a matter of public concern”.[26]
2.15 As these examples show and as argued by Paton-Simpson[27] and McClurg,[28]privacy is not an all-or-nothing concept that is forfeited the moment the subject steps onto the street. In Western society at least, humans have a fundamental desire to control access to viewing of their most intimate body parts. This expectation still exists when the person is in a public place, and arguably extends to keeping control over who sees one’s underwear, unless clothes are worn in such a manner that underwear is readily able to be viewed. In the great majority of situations it is common sense that the woman who wears a dress in public does not expect others to view under her dress, except to the degree that may be possible in a fleeting moment, and certainly not as a permanent image that can be endlessly manipulated and enhanced.
2.16 Covert filming results in a permanent image that, in the digital age especially, can be endlessly replicated, manipulated and distributed. This takes filming into a different realm from the traditional “peeping Tom” invasion of privacy. McClurg argues that photography intensifies invasion of privacy in three important ways.[29]First, the photograph makes a permanent image, thereby transcending temporal limitations and allowing the photographer to take, keep and scrutinise that part of the person, who is now an object. Secondly, photographs can reveal more than one would see through casual observation, especially through the opportunity for repeated scrutiny or the enlargement possibilities of modern technology. Thirdly, photographs permit dissemination to a much larger audience and to audiences beyond those anticipated by the subject. For instance, while people are prepared to undress in a communal single-sex changing room at a swimming pool, they expect that only those who share the changing room at the time will see them, and then only with the degree of observation permitted by the naked eye, and in accordance with social mores against protracted staring.
2.17 Technology can enable people to make images that are not readily accessible to the naked eye, whether this be through long-range lenses or pinhole cameras concealed in bags and placed below women’s skirts. Not only does this extend the possibilities for privacy invasion, it also makes the invasion less likely to be detected.
2.18 It is also relevant that the technology is comparatively inexpensive and easy to operate, and, in the case of cell-phone cameras, extremely widespread. One newspaper report from the United States of America claimed that by the end of 2003, worldwide sales of cell-phone cameras were expected to be between 40 and 65 million.[30] As an example of the traffic in cell-phone camera pictures, the same article noted that during the month of July 2003, one million cell-phone camera pictures were sent and received over one United States of America network alone.[31]
2.19 Demand for such images is fuelled by the commercial gains that can be made from websites for relatively little outlay. Rothenberg describes the phenomenon thus: “Modern electronics have transformed the deviant, usually solitary, act of peeping into a booming and perverse online-industry, built specifically upon the exploitation of non-consensual pornography”.[32] Both Rothenberg and Pope list numerous voyeuristic websites.[33]These include sites with names such as “Ultimate Upskirts: Nothing Like the Flash of White Panties”, “Voyeurs Corner: the Peepers Playhouse”, and “Raw Voyeur: A Peeper’s Paradise”. Voyeuristic images are cheap to make because there is no need to pay actors and distribution is easy and inexpensive. The sites are highly profitable because of the fees paid by users and the high number of hits, and because the images are often supplied free of charge. Reportedly, “[m]any of the voyeurs who submit material are more interested in seeing it displayed on the Internet as a ‘trophy’ and do not want any money in return”.[34]
2.20 When intimate covert filming is followed by distribution of the images there is a double invasion of privacy: the first when an intimate moment or facet of the individual’s life is photographed or filmed, the second with publication. Now an audience, that is not of the subject’s choosing (and possibly an extremely wide audience in the case of web publication), can see images of the person that he or she would prefer to keep private.
2.21 The impacts on subjects of covert filming and distribution will vary from case to case and from individual to individual. Relevant factors include the nature of the activity filmed, the location, the relationship, if any, with the perpetrator, whether and how the image is distributed and any pre-existing factors that make the subject particularly vulnerable. The responses are likely to fall within the parameters of development of psychological symptoms and disorders, distrust in relationships, fear for personal safety, and shame and humiliation.[35]
2.22 Examples of the way individuals have reacted include a 1999 case involving a technician for an operatic society production in Christchurch, New Zealand who secretly installed a video camera in a television in the female performers’ changing room. The women were videoed on a number of nights before the recording device was discovered. The submission made to the Office of Film and Literature Classification included the reported comments of six of the women who were surreptitiously filmed. One said: “I cried and felt upset and violated about this, disgusted and that being a private place it should be private and that no-one should have access to it to do this sort of thing”. Other women used terms such as “sick and shocked”, “really disgusted”, “humiliated”, and “really annoyed” to describe their reactions.[36]
2.23 In another example, the trusted friend and neighbour of a Louisiana family installed cameras in the family’s house above the bathroom and bedroom. When this was discovered the victim reported that she felt as though her skin had “been ripped off”. She developed an eating disorder, spent nights sleeping in the cupboard and felt that the voyeur’s actions should be “treated like rape”.[37]
2.24 There were similar reactions from the victim in a Hong Kong case prosecuted as sexual harassment.[38] A male student concealed a camera in the university hostel room of a female friend. The camera was discovered after some months and contained tapes of the young woman getting changed. In her evidence to the Court the plaintiff said that:
... she was shocked, upset, distressed and was literally trembling upon discovery of the camcorder. After viewing the tape in the camcorder, she was shaking and had to be supported by her friend ... . Furthermore, the incident had left her feeling violated, exploited, betrayed, humiliated and hurt.
2.25 For some time following the discovery she was afraid to stay in her hostel room, unable to go to sleep alone and felt she was being watched whenever she was changing.
2.26 The invasion caused by publication is illustrated by the comments of one of a group of male student athletes who claim they were secretly filmed in locker rooms, with the images subsequently sold on the web: “I pulled up the home page and I am looking at myself naked on the Internet ... . It is terrible because I have no control over it”.[39]
2.27 Many jurisdictions treat this as a privacy offence, albeit often with a sexual element as well. In the Federal jurisdiction of the United States, the Oxley Bill proposes to introduce an offence of “Video Voyeurism” to the United States Code by inserting the offence within a new privacy chapter.[40] The States of Delaware, Hawaii, Maine, Missouri, New Hampshire, Pennsylvania, Tennessee and Wisconsin deal with this conduct under offence headings of “violation” or “invasion of privacy”.[41] Similarly, in South Carolina, Connecticut and South Dakota the relevant offences sit alongside privacy offences such as eavesdropping, peeping and tampering.[42]
2.28 The Canadian Bill proposing the offence of criminal voyeurism defines it as both a privacy and a sexual offence, a dual definition that was supported by the great majority in the consultation on the proposal by the Canadian Department of Justice.[43]
2.29 The offence to privacy was discussed by the United Kingdom Review Committee that considered voyeurism in the context of its review of sexual offences. It proposed that the offence not require a sexual purpose, partly because of the difficulty of proving such, but also because “observation in the circumstances of privacy was sufficient, and the fear and distress its discovery could cause was sufficient in itself to justify the offence”.[44]
2.30 Both the Irish Law Reform Commission and the Law Reform Commission of Hong Kong have proposed statutory privacy torts that would cover aspects of covert filming and distribution.[45]
2.31 In addition to the privacy dimensions, it is evident from international responses that many jurisdictions have treated intimate covert filming as a sexual offence. In the United Kingdom, the offence of “voyeurism” is found in the Sexual Offences Act 2003. In Canada, one of the arms of the offence of criminal voyeurism is that the “observation or recording is done for a sexual purpose”.[46]In Ohio, the offence of voyeurism appears in the “Sexual Offenses” chapter of the Ohio Revised Code.47
2.32 Even though most of the United States jurisdictions describe their relevant offences as violations of privacy, or place them within the privacy chapters of their criminal codes, the frequent use of the term “voyeurism” indicates that this is, nevertheless, seen as an offence with a sexual element.[48] Often, the offences require a sexual intent on the part of the perpetrator, be it the “lewd or lascivious” purpose required in Louisiana, or the requirement that the offence be done for “obtaining sexual gratification” on the part of the person doing the filming or another, as is the case with the new offence in the United Kingdom.[49]
2.33 It is easy to argue that a sexual intent underlies most of this conduct because it normally focuses on people in situations when they are likely to be nude or partially nude. Thus, landlords, friends or neighbours install spy cameras to view bathrooms or bedrooms, clothing-stall owners conceal cameras in fitting rooms and people take cell-phone cameras into swimming pool and gym changing rooms. Up-skirt videoing is another version of this behaviour, focusing as it does on the intimate body parts and underwear of unsuspecting individuals. Even if the photographs are made for distribution rather than personal use, the most likely market will be a website or other publication that is aimed at sexual gratification of the viewers. The availability of the internet as a means of publication fuels the market for voyeuristic images. The reportedly vast number of voyeuristic websites featuring unsuspecting victims who have been filmed while nude or semi-nude underlines the sexual aspect of much of this filming.[50]
2.34 In discussing covert observation or filming, which they call voyeurism, the Canadian Department of Justice noted three core elements: “the surreptitious nature of the observations; the private and intimate nature of what is observed; and sexual gratification”.[51] In addition, they note that some voyeuristic behaviour is symptomatic of a more serious and compulsive sexual disorder. The Canadian paper cites the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders with respect to the conditions under which voyeurism may switch from a behaviour to a sexual disorder or paraphilia.[52] Voyeurism may be symptomatic of a sexual disorder if the behaviour becomes recurrent, and is associated with intense sexually arousing fantasies, sexual urges or behaviours, and if the fantasies, urges, or behaviours result in clinically significant distress or impairment in social, occupational, or other important areas of functioning, and particularly if the behaviour persists over an extended time period.53 Voyeurism may be an obsessive and compulsive disorder that may both contribute to, and reinforce, violent sexual fantasies, and is often associated with other paraphilias. Voyeurs typically reduce their victims to objects in their fantasies, which means they can then do what they will to them, and some go on to act out those fantasies.[54]
2.35 Both the Canadian Department of Justice and the Review Committee established to consider sexual offences in the United Kingdom, refer to research evidence that links voyeurism with other more serious sexual crimes. The Canadian report noted research evidence that most voyeurs engage in at least one other sexually deviant behaviour, usually exhibitionism or frotteurism (non-consensual sexual touching or rubbing).[55] There is evidence that voyeurism often occurs at an early point in the individual’s criminal history and as part of a continuum of sexual disorders that may get steadily more serious.[56] One study is reported to have revealed that approximately 20 per cent of voyeurs have committed sexual assault or rape.[57] Voyeurism is a chronic and prolific behaviour. In one study of 411 men, 13 per cent (62 men) admitted to being voyeurs and self-reported 29,090 voyeuristic acts against 26,648 victims.[58] As with many others with sexual disorders, voyeurs tend to rationalise that their conduct is not harmful and have little empathy with their victims.[59]
2.36 The United Kingdom Review Committee refers to a study by Abel, Mittelman and Becker that reported 14 per cent of child molesters and 20 per cent of rapists had committed voyeurism.[60] A 1984 study of 41 convicted serial rapists in the United States found a much higher correlation with voyeurism. This was found to be the predominant past or present sexual behaviour among the group, with 68 per cent of the men having a history of voyeurism that began in their childhood or adolescence.[61] By way of contrast, a recent Australian study of men serving prison terms for child sexual abuse in Queensland found a much lower percentage of paraphilias among these offenders. The Queensland study used criminal records and self-report data, and, with respect to paraphilias, found that
5.4 per cent of the study population could be diagnosed with voyeurism. This was the same percentage as for exhibitionism, with only frotteurism being more common in the group (9.0 per cent).[62]
2.37 On the basis of the studies showing correlations between voyeurism and more serious sexual offending, it is sometimes argued that voyeurism should be dealt with more seriously than as a “nuisance offence”. Although such correlations do not equate to causation, Davis argues that instances of voyeurism “should be considered, both clinically and legally, [as] red flags for other sexually deviant offenses”, with voyeurs being assessed for probable future danger and the potential for violence.[63] Such early identification could be instrumental in preventing future sexual offending.
2.38 Voyeurism will not always be a gateway offence to more serious sexual offending, nor will it always be part of a pattern of serious offending, nor will all individual voyeurs engage in the conduct to the extent that it becomes a sexual disorder. In some instances these wider patterns will be present, but irrespective of such links, voyeurism is at heart a sexually motivated behaviour, and the act of taking and distributing photographs of people in intimate situations will very often have a sexual motivation.
2.39 It is possible, however, that intimate covert filming will be undertaken for reasons other than sexual gratification. It may be done simply to embarrass or humiliate the victim and amuse others at the victim’s expense. This may be particularly the case with teenagers’ use of the technology. The secret taking of photographs of a particular person may also be an harassment or stalking technique.[64] Where these practices involve photographing people in intimate situations they would fall within our terms of reference.
2.40 Covert filming of people in intimate situations, and distribution of the images, will often have a sexual element, but not always. It will, however, always constitute an invasion of privacy, concentrating as it does on behaviour and aspects of the self that for the majority of people are the most private, and it can have serious consequences for the film’s subjects. It strikes at aspects fundamental to human dignity and autonomy, turning individuals into objects for others’ gratification and depriving individuals of control over how they are presented to the world. The affront to an individual’s privacy and dignity is also significant when the secret filming focuses on intimate parts of another person or their underwear, when that person has taken reasonable steps to protect these from public view and can reasonably assume that they are indeed so protected.
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