High powered celebrities contend daily with paparazzi dogging their steps and filming their every move. But now, even the Average Joes of the world need to be on their toes lest they find their faces plastered on a mobile blog, a Facebook page, or even displayed as part of an art exhibit.
Let’s face it, “street photography,” the appellation that describes those gritty, artful portraits of the human condition as it plays out in the public eye, is a far cry from surreptitious snaps of the overweight, underdressed or simply unfortunate in the hugely popular People of Wal-Mart site. These unflattering shots are made temptingly easy by the discreet nature of the camera phone. In fact, the smart phone’s small size and universal appeal make it simple to take snaps of almost everything, everywhere.
In the past, even a small personal camera would have been obvious to standers-by, but today’s cell phone cameras let people take a picture while pretending to text, make a phone call or check their email. The small footprint of the cell phone allows covert photos to be taken “up the skirt”or “down the shirt”without a subject’s knowledge, making previously sacrosanct public spaces like locker rooms, public restrooms, and gyms a photographic voyeur’s delight. In addition, where past photos of this nature might only be shared amongst a small group, today’s Internet allows global distribution of these embarrassing, intrusive shots.
Indeed, cell phone photography has gotten quite a bad rap lately. Sixty-two percent of schools currently ban cell phone usage in the classroom due to concerns about cheating, cyberbullying and sexting. Courts are moving to ban the devices as well, removing cell phones from courtrooms in order to protect witnesses, victims, juries and even the accused from photographic intrusion that can put them at risk.
Questionable cell phone camera usage has become an issue for many medical service providers and their patients. For example, one hospital clinician in New Haven, Conn. took a picture of the fatal gunshot wound of a young victim, who later died, and shared it digitally with another staff member. From there, the photo found its way to numerous other individuals. The grieving mother is considering a lawsuit against the hospital for violating her son’s patient confidentiality rights and several employees involved in the scandal have been terminated.
Other institutions that deal with life-and-death situations such as fire departments and emergency services providers face similar problems. The Chesapeake Fire Department in Chesapeake, Va. conducted a study regarding the use of cell phones and, particularly, cell phone cameras in the public service workplace. After compiling their results, the department recommended strict guidelines for cell phone camera usage that placed a high priority on preserving the privacy of other employees and clients to avoid legal entanglements.
More recently, an Arkansas gynecologist came under fire for taking cell phone pictures of a client’s nether regions during medical examinations in his office. After his arrest, officials seized his cell phone and discovered “numerous images of nude females that appear to have been taken in a medical office during medical examinations.” The doctor has since been charged with five counts of video voyeurism, a Class D felony.
The Video Voyeurism Prevention Act was passed through Congress in 2004 to deal with the growing threat of privacy invasion through mobile technology. Specific wording in the law provides protection from video, camera or other images being taken and/or broadcast of an individual if they are in an area in which they have a “reasonable expectation of privacy,”such as a gym, a department store dressing room, emergency room, or public restroom. Violators can expect up to $100,000 in fines and/or up to one year in prison. Many states have followed suit by enacting laws of their own that deal with digital age privacy violations.
But where does that leave the People of Wal-Mart? Modern tort law gives us four models for invasion of privacy violations.
- Intrusion of Solitude: this comprises physical or electronic intrusion into the private quarters of an individual including trespass, secret surveillance and misrepresentation;
- Public Disclosure of Private Facts: this alludes to the broadcast of truthful information, which a reasonable person would find objectionable;
- False Light: this refers to the publication of facts that put a person in a false light even if the facts themselves are not defamatory; and
- Appropriation: the unauthorized use of a person’s name or likeness to obtain some benefits.
Initially, it might seem hard to find fault with the site. The people pictured are in a public place with no reasonable expectation of privacy and there are no private facts being divulged. However, each of the photos is captioned in an amusing, but often derogatory way, which can amount to defamation of character and thus, libel. In addition, I would argue that the site owner of People of Wal-Mart is obtaining quantifiable benefits from the unauthorized use of these people’s images to drive traffic to the site, which features copious affiliate advertising from which the site owner profits. Posting these photos in order to build site traffic may amount to appropriation, but so far none of the “victims”have filed suit.
So legally, it’s a stretch. But ethically? Not so much. One particularly troubling People of Wal-Mart photo shows an elderly gentleman with an incontinence problem. We don’t know if the gentleman in question was aware there was an issue with his clothing, but we can be reasonably certain he didn’t realize his photo was going to be broadcast on the Internet for his children, grandchildren, friends and family to see. What if that was your father or grandfather? Or what if an eccentric or even mentally troubled friend or family member is the “Featured Creature”for the day? Certainly, the website is at best dehumanizing to its subjects—the captions under each picture make that crystal clear. But the intent to ridicule is present just by disseminating the photos in the first place.
The same ethical questions should be asked when we photograph people in difficult situations: the homeless, the poverty stricken, the physically challenged. Although they may be in a very public place with no seeming recourse to a privacy defense, they should receive protection from the standpoint of ethics. Snapping covert pictures of the ridiculous or unfortunate and broadcasting them on a worldwide forum like the Internet is tantamount to defamation of character. Our digital world ensures that every picture has a wide audience, subjecting the person photographed to widespread disdain, mockery or scorn, potentially resulting in embarrassment at the very least and possibly even the loss of a job or a relationship. The cell phone, with its easily concealed camera and low profile, allows people to not only satisfy morbid curiosity, but to share it with the world. Just last year, a known homeless man was found dead in downtown Houston with his lower body unclothed. According to police, not only did people not stop and help, but some even took pictures with their cell phones. One woman who was interviewed noted, “That’s not nice. Because that was somebody’s son. Somebody’s brother.”She could not have been more correct. Such unkind memorialization of someone’s misfortune is just plain ugly.
These scurrilous impromptu photo shoots are not victimless crimes—nor are they “art”. There is a real intent to demean, debase or disparage the individuals who are photographed and digital media makes it easier, faster and more covert. In the past, the erstwhile subject would at least be aware that his photo was being snapped. Cameras were large, obtrusive and even loud, as shutters captured an image. Digital phones allow camera shots to be taken furtively and silently, while the subject remains largely oblivious and our digital interconnectivity allows photos to “go viral”instantly —giving victims of this newfound street photography little recourse to protect their dignity.
While the legal debate over digital privacy invasion continues, cell phone owners have the freedom to take pictures and videos of anyone venturing out in public. Let’s hope that most will have the sound judgment to understand the impact of such bits of information on the lives of their subjects and confine their photography to people whom they know, or at least whom they’ve asked for permission.