Sweden Eyes Outlawing Using Smartphones to Take "Insulting" Pictures
“Modern-day Peeping Toms snapping photographs of women in various states of undress in department store fitting rooms, public toilets, or showers” are creating trouble in Sweden. Wendy Zeldin reports on this problem in Sweden: Proposal to Outlaw Use of Smartphones to Take Compromising Pictures. What we think of as voyeurism in the U.S. is apparently not unlawful in Sweden.
The Swedish government has been working to address the problem of privacy violations caused by secret picture taking since 2008. The current proposal is an attempt to protect privacy interests, while also protecting the freedom of expression and legitimate photography, such as for news reporting. What exactly is legitimate photography for news reporting in the Peeping Tom context? The draft law focuses on “insulting picture-taking,” making that a crime, but does not ban taking “unauthorized” pictures. The draft law leaves it to the courts to determine what an “insulting” photograph is. Although the widespread use of smartphones makes secret picture taking easier, it appears that the concern involves all “insulting picture-taking,” not just pictures taken with smart phones.
With the exception of the Video Voyeurism Prevention Act of 2004 (18 U.S.C. §1801), in the U.S., taking pictures of other people and what can be done with those pictures is governed by state law. The Video Voyeurism Prevention Act applies only to activity on federal property and makes it a crime to have the
intent to capture an image of a private area of an individual without their consent…under circumstances in which the individual has a reasonable expectation of privacy.
“A private area of the individual means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual."
Washington State crimes involving picture taking include Revised Code of Washington (RCW) 9A.44.115 Voyeurism. Under the Washington State statute,
a person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs or films….the intimate areas of another person without that person’s knowledge and consent.”
“Intimate areas means any portion of a person’s body or undergarments that is covered by clothing and intended to be protected from public view.” While the federal statute only requires an “intent to capture,” the Washington Statute requires the photograph be taken “for the purpose of arousing or gratifying the sexual desire of any person.” On the other hand, the Washington State statute includes any area that is “intended to be protected from public view,” whereas the federal statute includes only the genitals, pubic area, buttocks, or female breast. Chapter 9.68A RCW Sexual exploitation of children makes it a crime to aid a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed. However, the statute does not specifically state that the act of photographing the conduct is a crime.
On the civil (non-criminal) side, Chapter 63.60 RCW Personality rights controls what may be done with a person’s photograph. Under RCW 63.60.010 “Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness.” It is a property right which every person has the right to exploit on her or his own behalf. The statute addresses the use of photographs, but not the act of taking them. The statute does not apply to insignificant, de minimus or incidental uses.
On the lighter side of presumably unauthorized picture taking, this video of two firefighters in drag putting out a truck fire near Padua, Minnesota may have been taken with a smart phone. NPR reported that the two were on their way to a St. Patrick’s Day parade when they stopped to put out the fire. Minnesota reporter Maury Glover provides greater detail on the story in Sedan men donned dresses on St. Patrick’s Day.