Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Uncomplicated: free speech, privacy and law

with 15 comments

[In response to TechDirt: Reddit, Trolling, Doxxing, Free Speech & Anonymity: Whoo Boy, Is This Stuff Complicated I posted a comment; which I think this is important enough to repeat a slightly modified version here.]

Free speech is *only* legally protected from government censorship.

Individuals and corporations are legally allowed to censor speech in their own premises, forums, workplaces, homes, or anywhere else.

But what constitutes Free Speech?

The Crime?

The written description of what was posted online:

“…surreptitiously shot photos of others, usually women, usually focused on sexually objectifying the subjects of the shot.”

Photographing private individuals without their consent?
Then publishing the illicit photos on the internet?
I’m sorry, how is this free speech?
If you climb a tree and photograph your neighbor through their window, is that free speech too?

The article goes on to explain that the photographs were “often very young women.”
How young?
The comments mention the existence of a Reddit forum called /r/jailbait ?

And then there is the teacher posting photographs of students. When an authority figure abuses the power they have over over other people, it is an unconscionable breach of trust, possibly liable for criminal charges, certainly and most deservedly, to job loss. This is not free speech.

The Criminals

There have been emphatic arguments in the TechDirt comments about how important it is to protect the privacy of people who take such surrepetious photographs, and moderators who were aware of such content being published on the Internet without the subjects’ knowledge or permission.

You are concerned about the protection of the perpetrator’s anonymity.

Yet precious little thought has been given to the people whose anonymity has been stripped away through the publication of illicit photographs.  What about the victim’s anonymity?

The contention has been made that publishing such photographs is “free speech.”  Poppycock.

Photographs

Professional photographers only publish photographs of subjects when they have signed release forms, because otherwise they can be held legally liable. Even models that have been paid to pose must sign releases; if they don’t, the photographs are published at the photographer’s peril.

Because one’s image is part of the individual’s private domain.

Privacy

Although public figures may be “fair game” because they have put themselves in the public eye, private individuals are accorded legal protection of personal privacy.

The face, the likeness, the identifiability of individuals is protected. Any such invasion of the personal privacy of an individual must trump any arguments of free speech.

You can think what you want. You can say what you want. You can troll all the live long day. But taking surreptitious photographs of people and publishing them without express permission is a no-no.

If you post a photo of my daughter without her permission, or mine if she is a minor, you’ll find yourself in a world of trouble.  Because you will have invaded my daughter’s privacy.  You made this decision, you took these actions, and the logical consequence is that you answer for it.

There *should* be laws to address this creepy crap on Reddit. But maybe there aren’t. Or even if there are, the forces of law enforcement may not have a clue how to tackle a Reddit. Or maybe they *nudge*nudge*wink*wink simply don’t do a damn thing about it.

If the law does not answer, the best way to achieve social justice is to shine a light on injustice. If the law can’t or won’t deal with something this reprehensible, doxxing seems to be a perfectly acceptable, moral and ethical recourse.

And as the TechDirt article suggests, this wasn’t even doxxing, it was a case of media reporting.

logical consequences

Personal privacy is a natural right. We all need personal privacy. Our own space.

The creep perpetrators invaded that space.  They chose to commit bad acts.

People who are photographed secretly, and then had the photographs published, have chosen nothing. They have been victimized by the acts of the perpetrators.  Whether or not the law has defined this specific behaviour as assault, that is exactly what it is: an invasion of a human being’s personal space, and an assault on privacy.

Written by Laurel L. Russwurm

October 17, 2012 at 10:11 pm

15 Responses

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  1. […] made a similar argument some time ago about the Reddit creepshots issue. Reading mr. hank’s apology, it is easy to see that he, […]

    inappropriate | techDITZ

    March 26, 2013 at 1:21 pm

  2. This posting surprises me.

    You have a strong view on privacy rights, and appear to believe that a form of vigilante justice is justified to protect those rights.

    I know many people who have strong views on copyright, and believe similar lengths should be used to deal with infringers. A lesser remedy, the 3-strikes rule which only disables the alleged infringers Internet access and doesn’t even publicly out the infringer (in media or otherwise) or involve “doxxing”, is extremely controversial. The “rob Peter to pay Paul” non-solution of DRM (infringing the rights of technology owners, while still not helping copyright holders) is also quite controversial.

    In this case you are proposing to infringe an alleged infringers rights. While not as bad as DRM (where the technology owners whose rights are being infringed aren’t even alleged to be infringers), it appears to be in a similar direction.

    As strong as you may feel about privacy rights, you need to realize that like other government protected proprietary rights there is a need for balance: in the understanding of the harm, and in the remedies levied by the government, and the need for regulation against beyond (or outside) the law enforcement.

    Like where the line between copyrightability and the public domain is not clear, the line between privacy and the public domain is not clear. There are those who believe that Google Street-view invades privacy, even though all they do is record and make available publicly viewable images — I see no privacy issues, and do not believe subjects recorded in public should require model clearances, but recognize that others differ.

    This is not “Uncomplicated” as the subject suggests, and I don’t think socially acceptable solutions can be found to disagreements around these complex issues by ignoring the complexity or ignoring any differing opinions.

    To be clear: I’m not saying that either privacy or statutory monopoly rights have no value, and I’m not in any way trying to diminish the emotions of those who feel wronged by what they feel are blatant infringements. I’m just surprised at how someone who works to try to calm those emotions in one exclusive rights context can get so emotionally tied up in another.

    Note: I’ve barely been on Reddit, and never saw the /r/CreepShots (which appears to be closed now) so can’t comment on any particular content and whether I would agree it was infringing of their rights. I’m only commenting on what you wrote above.

    russellmcormond

    October 18, 2012 at 11:07 am

    • What bothers me most, what triggered my emotional response, is that the privacy rights of the victims in this story are not even being mentioned while the rights of the abusers are being championed to the nth degree.

      Something I learned not so long ago, when I was learning ways to deal with bullying, was that keeping silent is what allows bullying to continue. Like any type of abuse, bullying, especially if systematic, quite often disempowers the victim. The community shares complicity when bullying is allowed to go unchecked.

      People often lose the ability to fight back and stand up for themselves when they are bullied, assaulted, and abused, which is why people trapped in such cycles often can’t escape from them on their own. Sometimes they are even incapable of asking for help. So the community must speak up for them.

      Injustice and bad behaviour like bullying, hazing, assault and abuse, continue because it happens out of sight, or because “that’s just the way it is.” Allowing an abuser to hide behind anonymity allows the victimization to continue in darkness. Exposure allows these issues to be considered so societies can self-correct.

      In my indignation, my knee jerk response is to want to stop what is clearly abuse. But I’m the first to admit that I’m not always right, and, like most people, am capable of holding mutually contradictory opinions, particularly when I am incensed by injustice. When pointed out, I try to figure it out. In many ways, for me, blogging is thinking out loud. Particularly when encountering new or different ideas.

      And yes, you’re right, Russell, in that it is quite complicated after all. I think I need to investigate and consider before I take this further.

      Laurel L. Russwurm

      October 18, 2012 at 2:07 pm

      • When I first became involved in the “Copyright” debate I expected to be sitting on one side of the table along with fellow creators, and on the opposite side would be a subset of technology (hardware, software, cable, phone) companies. It threw me for a loop to sit there with creators on the opposite side, feeling (very falsely in my mind then as now) that their interests were aligned with these technology companies.

        It was only by interacting for years with these groups that I finally figured out that dynamic.

        You may find something similar with privacy. Just as I’m very uncomfortable when people emotionally compare copyright infringement with “theft”, I am very uncomfortable with your emotionally charge use of the world “assault” to refer to invasions of privacy. I’m made more uncomfortable by the fact we may be talking about different activities: I don’t consider someone making recordings of something happening in a public place to be an invasion of privacy, no matter how those recordings may re-purposed.

        In my mind there are two separate activities: the recording, which may or may not be a privacy issue (I say no if it happens in public, yes if recording happened in private) and the possibly re-purposed publication, which I consider to be purely a speech issue.

        If pictures are taken of a woman in a public place, with that image then published in a context that sexualizes that image, I consider that to be a free speech issue. I may be uncomfortable with that speech, but that is exactly what makes it a free speech issue: free speech is about our willingness to defend someone’s right to communicate something we disagree with, not their ability to say things we agree with.

        Are we even talking about the same thing? Are we talking about images taken in a private setting that are then publicly published, a more clear privacy invasion, or are we talking about public imagery communicated in a way that makes us uncomfortable?

        russellmcormond

        October 19, 2012 at 10:53 am

        • “Are we talking about images taken in a private setting that are then publicly published, a more clear privacy invasion, or are we talking about public imagery communicated in a way that makes us uncomfortable?”

          I am talking about images taken and/or published without the subject’s consent. Public “imagery communicated in a way that makes us uncomfortable” is not my concern here, my concern is for private individuals whose privacy has been invaded in this way.

          If people want to simulate such images, using willing participants, volunteers, models or actors, and then publishing it in a public place to make you feel uncomfortable, although I too might find it disturbing, I would defend it as free speech.

          I don’t believe I am overstating the case, or even using hyperbole when I state that an invasion of privacy can be an assault.

          My take on this has been formed over the course of my lifetime, much of which has been engaged in actively photographing my world.

          One thing I know very well is that many people do not want to be photographed. For some people, that means today, because it’s a bad hair day. Or it’s because they didn’t put on make-up, or they are wearing that cruddy old sweater. Or maybe they want to loose five pounds. Or get a haircut. For others, it means they never want their photograph taken. Perhaps the person is intensely shy. They may have religious objections. Or perhaps mental health issues. Some people simply don’t want to their picture taken because they are private people who guard their privacy.

          There are many people who feel violated when they are photographed. When photographs are taken over any of these objections, and worse, published, I believe the invasion of privacy should be considered assault.

          Life has become very difficult for people who don’t want to be photographed, in this world where everyone has a cell phone, it means everyone is armed with a digital camera. I am not a lawyer, and I’ve only just begun looking into what the law actually is, as opposed to my perception of what the law is. From the little bit I’ve seen so far, the law is very much in flux.

          In the case of Reddit, I understand that while some of the photographs were taken surreptitiously, some were harvested from venues like Facebook without the consent of the subjects. If there is no law in place to directly protect the privacy of individuals, perhaps they will employ copyright law to take down such websites.

          “I don’t consider someone making recordings of something happening in a public place to be an invasion of privacy, no matter how those recordings may re-purposed.”

          I disagree; I think it should depend on the expectation of privacy. You might find Would it bother you if a restaurant surreptitiously recorded your dining experience? interesting. Perhaps one day you’ll host a family dinner at a nice restaurant, where the whole thing will be filmed surreptitiously. Perhaps the restauranteur’s enterprising film school son will write and dub in funny dialogue, and the first thing you know, your family will featured on Comedy Cuisine on CBC.

          The issue isn’t one of repurposing, but consent. Although the family dinner takes place in a private-public restaurant, your family’s expectation of privacy should not allow being filmed and broadcast. If you had filmed the thing and posted it on You Tube, (with, of course, the consent of the participants) the family dinner would no longer be a private thing.

          “If pictures are taken of a woman in a public place, with that image then published in a context that sexualizes that image, I consider that to be a free speech issue.”

          Again, I disagree. Without consent, privacy is violated.

          Laurel L. Russwurm

          October 19, 2012 at 4:08 pm

          • I think I’ll bow out of this after this comment given the strong emotions.

            The world is a complicated place, with a lot of different ideas on what is harmful and what is not. When it comes to a woman’s image you have people who consider a Higab to be offensive to women, and others that consider a bikini to be offensive to women. I personally don’t find either offensive, but do get uncomfortable when people try to impose their own personal views on others (about this or other such issues).

            We strongly disagree that picture taking of someone in a public place is a violation of privacy. Given how strong we feel these opposite views, and the fact we are unlikely to be convinced of the others point of view, is it correct to have the law to absolutely pick one side or the other without any balance? Does it at least give you pause to realize there are people who you agree with on other issues that disagree with you on this one?

            Obviously we disagree on whether “an invasion of privacy can be an assault” any more than I can agree with those who consider copyright infringement to be an assault and/or theft. I have heard that level of language before from authors/artists, and I simply can’t abide by that.

            Your image (of your person, what you are calling privacy even when you are in public) and your ideas (as you express them, often copyrightable) all come from a concept of self (what is and is not part of the person, or part of the public domain). This concept of self is something that varies widely not only within our western society but globally.

            I think having the law impose your idea of self onto me would be as offensive as my idea of self being imposed on you, which appears to be what you took offence at to make this posting.

            Should I go around suggesting that denying me the right to take pictures in public without asking permission of any person who happens to be in view (natural persons? Or do corporations, their building, etc count as well) is assault?

            I’m not going to use that language, as an infringement of intangible rights isn’t assault, whether it is my rights being infringed or someone elses.

            russellmcormond

            October 22, 2012 at 9:28 am

    • FYI Privacy is not a “proprietary right” but a human right.

      Laurel L. Russwurm

      October 19, 2012 at 4:34 pm

  3. “If the law does not answer homosexuality, the best way to achieve social justice is to shine a light on it. If the law can’t or won’t deal with something as reprehensible as sodomy, doxxing seems to be a perfectly acceptable, moral and ethical recourse.” Therefore Christians should out gays? Why is your philosophy inapplicable to Christians who are morally outraged about homosexuality?

    If you think that being outraged at someone’s behaviour is sufficient to make doxxing ‘ethical’ then doesn’t that make outing gay and lesbians ‘ethical’? You are not the only one in the world with a sense of outrage.

    If something illegal was done, then the criminal should be prosecuted. However, it is my understanding (and I could be wrong since I didn’t look at the pictures) that the reason Reddit’s subforums were ‘legal’ is that the pictures had all identifying info (i.e. faces) removed. It is legal to take public photography, as long as people aren’t clearly identifiable — because then you would have to deal with model rights. No identifiable photos = no model rights. To take this right of public photography away would be to destroy the art of photography in public, really. You can’t take a crowd shot of a city street and then get permission from thousands of people. That is why this rule developed you don’t need permission unless their faces are identifiable.

    I am not defending Reddit’s actions however; I am merely explaining why they qualify as free speech (and it is Reddit’s free speech to publish these pics that is at issue here not just ViolentAcrez). If I were a Reddit moderator, those pictures would never have been posted. But I am not a Reddit moderator and Reddit has freedom of speech so if they wish to publish it and it is legal, then of course, yes, it qualifies as freedom of speech. How could it not? Any speech that is legal is by definition also free. There is no difference between ‘legal speech’ and ‘free speech’ — they are the same exact thing.

    laroquod

    October 18, 2012 at 5:26 am

    • The creative use of quotation marks fails to make the analogy. There is a difference between identifying someone with different beliefs and identifying a perpetrator. Behaviour that assaults another human being’s privacy is not merely behaviour, it is assault.

      You seem to have a predisposition to rely on the law as the way to get it right, yet last I heard, there were innumerable laws against homosexuality, as well as legal ways to protect attacks on homosexuality on the law books around the world. “The Law” has been the instrument of suppressing homosexuality much more often than it has been its saviour.

      Governments like ours are scrambling to make laws that will make incursion into Canadian privacy the rule. Although you may wish online anonymity was protected anywhere, it is not. Even if protection of anonymity was in fact covered by law, as in most things, comission of a crime would allow law enforcement the ability to breach that anonymity via search warrants. Assault is always wrong, although the law does not always reflect this. Law allowed people to assault their spouse, or their children until recently. Law used to allow students to be assaulted by their teachers, slaves to be assaulted by their “masters” or employers to assault their employees, but although these assaults were allowed legally, they were not right.

      I did not look at the photographs either, but you are assuming the photographs were taken in public. Yet we know from the article that photographs taken in a classroom were included. This is not a public place. There are many places that we see as “public places” that in fact are not. Places like theatres, and malls, or concert halls. But even in these private-public places, private individuals are still afforded an expectation of privacy unless we waive it. Concert tickets routinely include fine print which states that the patron waives this right as part of the cost of admission to the venue.

      Private individuals have the right not to be photographed and such photographs published without their consent. Although I haven’t seen these images either, it’s a pretty good bet that none of them feature a cast of thousands. What is identifiable? Maybe you can’t identify someone by their body parts, but there is every possibility they can. Amanda Todd certainly identified her own breasts when her assailant posted the photograph of her breasts on Facebook.

      Your argument is willing to sacrifice the privacy of victims to protect the privacy of perpetrators. That is not socially responsible, nor can it ever create social justice.

      You say you aren’t “defending Reddit’s actions” but “explaining why they qualify as free speech” — but the problem is that under law, they don’t qualify as free speech. Reddit is not “public” and so has no legal obligation to protect free speech under law. If the government stepped in to censor, *then* it would become a free speech issue.

      Even if what was done on Reddit could be legally considered protected free speech, the fact that it is assault would supercede any free speech protection in the name of the public good. Free speech is not what you think it is, it is what the law says it is. That’s how law works.

      Laurel L. Russwurm

      October 18, 2012 at 10:31 am

      • Reddit’s posts and comments (and actions in leaving up the posts and comments of others) do qualify as Free Speech, in that the government has no rights (legal or moral) to shut it down.

        True, Reddit has no obligation to protect the speech of others, and Reddit is perfectly justified to limit or censor the speech of others who post on the Reddit site. That’s not an infringment on the free speech rights of others, because Reddit is not the government. And those others are free to post their speech on their own sites.

        But is it right for Reddit to censor others? Is it justified? Is it moral? As Laroquod pointed out on the Techdirt comments, if a large corporation which the majority of the public uses to express their speech begins to censor that speech, it is effectively removing the ability of the public to speak freely. Yes, they can set up their own blog on their own server, but that’s unlikely to be heard. Of course, the right to free speech does not automatically confer the right to be heard…

        Bob Jonkman

        October 18, 2012 at 5:02 pm

      • “There is a difference between identifying someone with different beliefs and identifying a perpetrator. ”

        Whether or not there is a perpetrator, or a victim, in either scenario is a matter of different beliefs.

        My personal beliefs on whether homosexualiy or sexualizing public images is wrong, or whether either makes me uncomfortable, doesn’t change the fact that it is a personal belief. I consider it unhelpful to define the issue as being about beliefs vs victims/perpetrators.

        You also have a particular viewpoint of where the line between public and private is, but that too is a matter of different beliefs. My line is much closer to home where what I do within my home is private, but when I leave that home and travel on streets or in other buildings (regardless of who owns those streets or buildings) is public.

        We may all want the classroom to be a safe place for our children, and that they are protected like they would be in their home, but that doesn’t define the classroom as a private space. I think that is a square-peg/round-hole situation where we might agree on the need for protecting our children from this type of harm, but will disagree that laws surrounding privacy or speech are the appropriate tools for the job.

        We can also add to this conversation the question of whether anonymous speech should ever be protected. I know when it comes to political speech I don’t personally accept the legitimacy of anonymous speech, but wouldn’t go so far as to want laws to outlaw it (to mandate public disclosure of the identity of any public speaker). I just wish that people ignored anonymous speakers in any of their political deliberations.

        This thread makes me curious what you feel about Wikileaks, and whether as an organization that facilitates supports anonymous public speech they should be shut down/jailed/etc. There are many who consider that to be a matter of victims/perpetrators, and believe all anonymous sources should be disclosed under strong penalty of law, but that too is a highly controversial question of personal opinions. For my part I am a supporter of Wikileaks even when I don’t consider the material to be credible/legitimate, and wish western governments would stop going after Julian Assange for his political beliefs.

        russellmcormond

        October 19, 2012 at 11:13 am

        • “There is a difference between identifying someone with different beliefs and identifying a perpetrator. ”

          Whether or not there is a perpetrator, or a victim, in either scenario is a matter of different beliefs.

          It is not merely a belief when harm is caused to a person, regardless of whether there may not yet be laws in place to provide reasonable protection.

          Although I am not a lawyer, and have not yet had time to bone up on the law, I rather suspect that your delineation of the line between public and private is no more an exact representation of current Canadian law than mine is.

          For instance, does that then mean that a homeless person has no expectation of privacy?

          I seem to recall that “private property” was invoked to evict Occupy protesters.

          Your opinion about classrooms may well change were you to start wandering about any elementary school, with no good reason for being there. I know of at least one instance where a school had a restraining order to prevent a parent from setting foot on “public school” property. Parents of Ontario public school students must grant written permission for their children to be photographed by school staff on school property. I’ve also been told that privacy law requires written parental permission before personal student medical information may be shared with school board staff.

          Anonymous speech is necessary if we are to have real democracy, so I myself support that, as well as WikiLeaks, and agree with Julian Assange that individual privacy must be protected under law, but there is a different standard for people in the public eye. I confess that I don’t yet know what that is under current Canadian law.

          What I think is that politicians families should never be “fair game,” but the words and actions of our elected representatives should be. Transparency in government is important, but extra-judicial surveillance of citizens, whether by governments, corporations or creeps, should not be acceptable. Public Officials and Celebrities have less of an expectation of privacy because they have put themselves in the public eye, and I think the law reflects this. This seems somewhat reasonable, but I have not given this part of the issue much consideration.

          Laurel L. Russwurm

          October 19, 2012 at 5:49 pm

  4. You could rephrase this as “you have the right of your own speech, but you must not use others for that speech without their consent”.

    Or rather “your right of free speech has to be weighted against others rights of privacy”. That’s what differenciates posting the photograph of a random person on the street from posting the photograph of a politician: In the latter case, the right of free speech mostly trumps privacy, because speaking about the public figure is of public interest – and it already was, before you took the photographs.

    Arne Babenhauserheide

    October 18, 2012 at 3:05 am


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