Naked and digital eyes

The Queensland University of Technology (QUT) Faculty of Law and the Lawyers’ Reform Association of Queensland recently hosted a free public lecture entitled, Minding your own business: Your legal right to privacy at QUT.

One of the topics covered was the four new offences introduced in Queensland in December 2005 pertaining to observations and visual recordings in breach of privacy. The offences are provided in ss 227A and B of the Criminal Code (Qld) and were devised to address voyeuristic behaviour. The motive of the person observing or visually recording, for example, for sexual gratification, harassment or commercial benefit, is irrelevant.

The criminal laws apply to people who observe others with their naked eye, with binoculars and also to people who make still and moving visual recordings: for example, people who use mobile phone cameras, digital cameras, video cameras and cameras linked to a live CCTV or a website. The application of the laws to moving visual recordings means the criminal laws are able to keep up with advances in technology.

The four criminal offences protect the privacy rights of everyone. They do not distinguish between the privacy rights of females, males, children or celebrities.

The first offence prohibits a person from observing or visually recording another person without their consent, while the subject is present in (not necessarily using) a private place, for example, a bathroom, toilet, bedroom and communal change room (such as at a beach, swimming pool or gym). This offence hinges on a reasonable person’s expectation of privacy. The maximum penalty for this offence is two years’ imprisonment.

The second offence prohibits a person from observing or visually recording another person without their consent, while the subject is engaging in a private act. This offence applies in public and private places, but it is restricted to private acts, for example, using a toilet, showering, changing and intimate sexual activities not usually done in public. This offence is also anchored on a reasonable person’s expectation of privacy.

Consequently, it would capture a person who uses their mobile phone camera to film another person changing in a communal change room without the subject’s consent. It may also capture a third person who observes a person using a toilet with the assistance of a second person. However, it is unlikely to capture a person observing another person with their naked eye in a communal change room. Further, it would not apply to a security camera that records a couple engaging in an intimate sexual activity, if the purpose of the recording was not to record that behaviour. The maximum penalty for this offence is two years’ imprisonment.

The third offence captures people who observe or visually record another person’s genital or anal region. Despite this offence being commonly referred to as up-skirt filming, it is gender neutral. The maximum penalty for this offence is two years’ imprisonment.

The first three offences apply to making a prohibited visual recording, whereas the fourth offence applies to distributing a prohibited visual recording without the consent of the subject. The fourth offence catches a person who accidentally makes a prohibited visual recording, but then decides to distribute it. The term “distribute” has a very broad meaning and it is impossible to envisage a type of distribution that is not covered. In particular, it would cover distribution via the Internet, email, magazines, journals, newspapers, notice boards and flyers. It even captures people who enter into an agreement to distribute the visual recordings.

Interestingly, the maximum penalty for distributing a prohibited visual recording is the same as making the prohibited visual recording, that is, two years’ imprisonment. Is it reasonable that the maximum penalties are the same? Making a prohibited visual recording may mean that the visual recording ends up in the hands of only the maker. However, distributing a prohibited visual recording may mean that the visual recording ends up in the hands of millions of people via the Internet.

Section 227C of the Criminal Code (Qld) provides that law enforcement officers reasonably acting in the course of their duties. Further, people who observe or visually record subjects who are under a lawful custody or supervision order are exempted from the new offences. The legislation provides a couple of examples that are exempted such as observing a subject for their own safety (suicide watch) or for the safety of another person, and observing a person providing a urine sample for a drug rehabilitation order.

The new offences do not prohibit a person from surreptitiously observing, photographing or filming a topless female or male bather at a public beach; or a child playing in a public park; or a person engaging in everyday (non-intimate) activities in a public place. In Queensland, these examples are not offences even if the observation, photography or filming was done for the purpose of sexual gratification. Further, it is not an offence to upload these surreptitious images on the Internet or distribute them via other methods.

The Standing Committee of Attorneys-General is currently exploring the regulation of the use of surreptitious and non-consensual images taken in public places, among other issues identified in their discussion paper dated at August 2005. The Australian Law Reform Commission in its issues paper no. 31 indicates that they will watch the deliberations of the Standing Committee of Attorneys-General and take on board any unresolved issues.

Keep your naked eyes open for further developments in this area!