LAST WEEK, I was on my way down Dublin’s Aston Quay, when I passed a strung-out looking couple having a row on the footpath near the Merchant’s Arch. On the other side of the road was someone with his smartphone in his hand, filming them. Perhaps the footage thus generated has already made it onto YouTube, where it has no doubt generated equal measures of condescending mirth and calls for the mass extermination of heroin addicts.
I didn’t really think about the incident until a week later, when I came across this article by Sophie Wilkinson, who was photographed without her permission, the photograph later posted to a Facebook group called Women Who Eat On Tubes.
The article details her efforts to have the photo removed, first by contacting the man who posted the snap, and then by contacting Facebook. Ultimately, it was only because he reposted her photo more than once (thereby slipping into the terrain of harassment) that she prevailed upon Facebook to remove it.
It turns out this Facebook group has received quite a bit of attention lately, much of it focusing on the tangled relationship between gender, the “male gaze” and issues around eating and self-image. These are all valid angles to take (the whole area is loaded with misogynistic implications), but the issue need not have anything to do with gender. In 2011, an Irish site called LuasCrush was shut down following intervention by the Data Protection Commissioner, who was less than pleased by the idea of user-submitted photos of men snapped on the Luas being posted online for the delectation of strangers.
The legal principles here involve privacy and data protection. Privacy tends not to arise when you’re in a public place (though the rule is not quite that simple. Naomi Campbell won a breach of privacy case against the Daily Mirror for photos snapped as she entered a Narcotic Anonymous meeting – a public place, yes, but an occasion where it was reasonable to expect some privacy). But that is not the end of the matter, whatever the owners of “stranger shaming” sites might like to suggest.
Under Data Protection law, you have a right not to have your personal data collected, published or otherwise processed without your consent. This includes your image, and therefore covers photographs. There is an exemption to the Data Protection Acts for the purposes of art or journalism – otherwise, it’s hard to see how any kind of photo-journalism could exist – but a website devoted to ridiculing women (and only women, interestingly enough) who eat on public transport is unlikely to avail of this public interest defence.
Data Protection laws are a creature of European Union law, so the principles are the same Europe-wide (though the zeal with which they are enforced varies wildly). Sophie Wilkinson seems to have been short-changed in her interactions with Facebook, who ought to have been aware that there were data protection issues involved. It might prove useful to draw the group’s existence to the UK’s Information Commissioner, who ought to have a view on it.
Aside from the legalities, what is at issue here is power. Women, for example, often have more reason to feel vulnerable in public places than men do. To act otherwise and take unauthorised snaps at will is to abuse that vulnerability. Reams have been written about the power of the gaze, the imbalance between the viewer and the viewed. Most shared unauthorised images depend for their popularity on just this disparity. The attractive deriding the unattractive. Men leering at women’s bodies. The middle class sneering at the dress sense or social graces of the working class.
The issue is this – if you go around taking photos of people without their knowledge, you are being a creep. This is whether you have a pretentious justification for the practise, like this guy, or you are using the images for your private sexual gratification, like these guys.
Ultimately then, this is a social question. Technology has moved forward so quickly that social taboos and etiquette have not yet solidified around the issue. The ubiquity of the smartphone means that not only can photos be taken more easily, but that they are taken more often. I have taken more photos in the past month than I did in entire years of my pre-smartphone life.
This in turn has led to an increasing belief that exposure to a lens is part and parcel of being out in public. When all it takes is one additional click to upload a snap to the internet, you have a culture where none of us can say for sure how many of ourselves might exist on a phone or server somewhere. What is needed is not law – we have law enough already – but a consensus to take the notion of privacy in a public place seriously. We might start by not passing on media made without the subject’s consent. After all, the next time, it could be you.
Fergal Crehan is a barrister practising in Data Protection law. He writes on legal subjects at www.fergalcrehan.com
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