Beware the full frontal selfie

POSTED BY Rick Shera
20 April 2014

posted in Information Technology | | cybersafety | Social Media



Aaron Smith is an All Black rugby player.  In New Zealand that means anything he does is newsworthy but it's hard to imagine anything more likely to attract publicity than his full frontal nude selfie that made its way to twitter recently (the image of the tweet to the left of course shows ... ahem ... only half the story). The way in which this occurred though raises important privacy and criminal law questions.

Apparently, Smith took the selfie of himself in the shower and, using the snapchat app, sent it to someone. That person then apparently took a screenshot of the image on their phone before it disappeared and sent it to someone else, who may or may not have been Rachel Glucina, a gossip columnist for the New Zealand Herald.  However Ms Glucina got it, she then tweeted it and from there it was distributed far and wide.

It surprises me that someone employed by a mainstream media outlet would tweet such a photo but maybe that is the type of buzz Ms Glucina is there to generate.  Putting to one side journalistic ethics and taste however, the question is whether she and others who then retweeted or published the image crossed a legal line in doing so.

Let's look first at the privacy issues.

By using snapchat it can reasonably be assumed that Smith intended the image to be an ephemeral one, shared solely with the recipient (or recipients - we do not know how many people he sent it to). The app is designed so that snaps only last for 1-10 seconds after receipt.  Admittedly, there have been stories of people taking screenshots of snaps to get around this built in restriction, but if Smith had intended the recipient to keep the image, he would surely have sent it by email, text message or some other means.

In my view there are a number of breaches of the Privacy Act.

Privacy principle 4 requires personal information to be collected in a fair manner.  Screenshotting and retaining a snap which was intended to self-destruct is hardly fair.  For similar reasons, retention of the image breaches principle 9, which stipulates that personal information may only be kept for as long as necessary to fulfil the original purpose. Smith's purpose in sending the image via snapchat was for the recipient to have it for up to 10 seconds and not longer.

The initial distribution by the person who took the screenshot is also a breach of privacy principle 11, which prohibits disclosure of personal information except in limited circumstances, such as where the person concerned has consented. There is no indication that Smith consented to the recipient emailing it to Rachel Glucina, if that is how it got to the latter.

New Zealand also has a privacy tort established by the Court of Appeal in Hosking v Runting. To paraphrase, there will be a breach where information in which there is a reasonable expectation of privacy is published in a manner which is highly offensive to a reasonable person.  As noted above, in the absence of evidence otherwise, the use of snapchat indicates a desire to keep the information confined to a particular recipient and its publication beyond that would in my view meet the offensiveness standard.

The above conclusions seem relatively straight forward. The more difficult question though is whether there is a crime here.

In 2006, in response to concerns at how smartphones enable people to take photos and video footage in private circumstances unbeknown to the subject, the Crimes (Intimate Covert Filming) Amendment Act was passed, adding sections 216G - 216N to the Crimes Act 1961.  The regime makes it a crime to make, possess for distribution or to distribute an intimate visual recording. Any offence may be punishable by imprisonment for a term not exceeding 3 years.

The question then is whether the image which was distributed is an intimate visual recording.  If it is, anyone who tweets, retweets, posts or otherwise publishes the image will technically commit a crime.  Even possession with a view to distribution constitutes a crime.

The definition of an intimate visual recording is:

... a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of—

(a) a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and that person is—

(i) naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or

(ii) engaged in an intimate sexual activity; or

(iii) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing; or

(b) a person's naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made—

(i) from beneath or under a person's clothing; or

(ii) through a person's outer clothing in circumstances where it is unreasonable to do so.

Smith himself made the first recording - the selfie - so that does not qualify.  However, it is possible I think to argue that the screenshot of the snap is itself an intimate visual recording.  It is a digital image.  As noted above it was made presumably without Smith's consent.  The only question is whether it is made of Smith in a place where one could reasonably expect privacy, given that he took it of himself in the shower.  Maybe his expectations of privacy are a lot lower than yours or mine but I think it is safe to say that most people have an expectation that their shower is a private place.  Given that he specifically chose snapchat to send the image, I do not think that expectation of privacy is displaced.  I should note here that there was some inconclusive discussion of whether such initially consented to images would be covered by this law when it was discussed in Parliament on the Bill's second reading.  However, I do not read those comments as precluding my interpretation even if a Court feels the need to look to Hansard.

So, I think it is quite arguable that the taking of the screenshot is a crime and that any later publication or distribution of it via social media or otherwise is also a crime.  This was not a circumstance contemplated when the law was passed in 2006. However, I think it fits within the wording of the section and it certainly fits the objective of the law to prevent the circulation of intimate recordings without the consent or knowledge of the subject. Or, maybe the Court will just look at what Smith has done and decide that he's brought it on himself .  Live by the sword; die by the sword ... as it were.

I'd be more than a little concerned if I'd tweeted or retweeted it though.

POSTED BY Rick Shera
20 April 2014

posted in Information Technologyl@w.geek.nzcybersafetySocial Media



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Would probably be breach of confidence as well.
POSTED BY Lork | Thu 24 April 2014Reply to Comment