Publishing nude photos of your ex partner on the internet as a form of revenge for them dumping you is terribly unethical behaviour, but apparently it’s not illegal. Nonetheless, in a recent case a man was convicted for publishing an indecent article in the form of nude photos of his former girlfriend that he uploaded to his Facebook profile. He then contacted her to taunt her about it. He violated her trust and her privacy, but this is not a crime either.
His behaviour was ugly and stupid, and clearly constitutes harassment. Why was he not prosecuted for harassment? Perhaps the law in this area is also inadequate. It seems that indecency was the only dubiously legal means to punish him. In my opinion, this conviction makes a travesty of the law and is a fundamental abuse of the state’s power.
Assume for the sake of argument that the woman knew the photos were being taken and freely consented to pose for them without duress. Copyright law says that, unless otherwise contracted, the copyright of the images belongs to the photographer, in this case the man. It is therefore likely that he owned them and, irrespective of ethics, was free to do what he wanted with them.
In public space, we do not have a right to privacy according to Australian law. In private space, the property owner has the discretion to determine whether photography can be undertaken on their property. In summary, privacy laws are fundamentally inadequate in Australia. In a world where infinite digital copies of images can be published and republished, the law as it is now is anachronistic, out of date and makes no sense.
Taken literally, this judgement says that anyone who publishes images of nude bodies in Australia is guilty of an offence. Obviously this happens every day in magazines, television shows and on the internet. Classified publications (those approved for publication by the federal government, such as films, computer games and magazines) are exempt from this law. Personal publications, including on the internet, are not excluded.
The average Australian does not find the naked body indecent and the publication of such imagery is a profitable business with many people paying to consume images of naked people. This judgement is not really punishing the publication of images of nude bodies. This is not the crime.
What is really being punished here is the invasion of privacy. In theory this is just as most people are likely to find invasions of privacy and betrayal such as this abhorrent. The only problem is this behaviour is not illegal, merely unethical.
The information published was not indecent. The act of publishing this information was indecent. But this law does not address behaving badly. This law is clearly being misused. In my opinion this is a particularly partial and morally biased use of the law to punish behaviour that, while ugly, is not illegal.
No doubt I will be accused of victim blaming but, nonetheless, if you don’t want nude photos of yourself to appear on the internet, don’t have a relationship with an insecure jealous loser and don’t let him take nude photos of you. Protect your privacy because the government can’t or won’t.
This judgement also has implications for the future of the freedom of speech we currently take for granted and enjoy in relation to the internet. Imagine having to submit every Facebook post to a government agency for approval before being able to click ‘submit’. If the internet was treated the same way as legacy publications are now, this would be the result.
Governments would love this because it would fundamentally inhibit freedom of speech, particularly in relation to political speech. Corporations would love it also as it would return them to their former position of power as publishers and force us back to the role of passive media consumers, not active media creators.
We individual citizen consumers, however, would lose something infinitely precious that we have had for only a few wonderful years: the ability to communicate, share and organise, all around the world, beyond the control of governments and corporations.
What we can do on the internet is under threat. Our content is filtered without our knowing about it. In the UK a man was recently found not guilty of publishing obscene articles in the form of online advertisements for the gay porn DVDs he starred in, produced and sold. He should never have been prosecuted.
I want governments to make changes to copyright, privacy and harassment laws to make this vindictive online behaviour illegal, but I fear that this precedent will instead be used by them to justify suppression of free speech on the internet.