Any Photojournalists Care to Comment?

This is an interesting ethics case, from a photojournalist’s perspective, and if there are any journalists reading this, who live and die by the model release and privacy concerns [exposing facts that are embarrasing but true, invasion {via zoom lens}, etc.], I’d like to hear your opinion. Also consider this: On the one hand, the photographer has a legal right to take a picture in public. On the other, the students in the picture apparently could be identified. Finally, the photographer posts the pix the Web, which eventually allows publication on blogs with pix copied and posted elsewhere without permission in various venues with possible spurious content, from College Humor to pornographic sites. Now we have “false light.”

Is this also an example of the kinds of legal cases that universities will be dealing with, let alone bloggers, who believe in a free press but who also may not even know the legal terms that restrict the working media?

Ethicist, at 6:34 am EST on December 1, 2005

Interesting Perspective

Well, I have a very interesting perspective on this story. First of all I am a conduct administrator at a public university and prior to that was a residence life staff member for four years. Not interesting you say? Well here is the twist I am also a freelance proffesional writer/photographer in my spare time. I too am a huge student rights advocate. It is therefore that I am torn on this issues.

In the digital age where high quality photos and even streaming internet video are widely available especially to student that are known to have the most disposable income of the population, there is a plethora of so called photographers out there. All it takes is a good camera and people seem to hang their shingle on their door as a photographer. On the face of this case I would not call an engineering student with a high tech camera a photographer.

Second, while the agrieved student student certainly has a reasonable right to privacy, I look at the other windows at this UPenn residence hall and I see blinds clearly shut. Blinds probably provided by the university. Therefore the students expectation of privacy has been clearly provided for, however, for whatever reason the student has not taken advantage of those accomadations as provided. This is not a case of a photograph of a student having sex in their bed and caught by a photographer but a student who made some quesionable choices and clearly chose to put their sex life out in public for anyone to see. I would also look at wrong doing by the student even though she is played as the victim here. As the previous comment from the esteemed colleague from my alma matta Ole Miss stated if you did this in your front window at home you should expect the police to be called and criminal charges. I hope administrators charged this student as well.

Finally, in examining the photographers actions I would have to look closely at his intentions. Was his intention to submit the photos to such questionable internet sites as we have seen that the photos have been submitted or was the intention to report an act. Or was his intention to harm those he was photographing? If the later has been found to be true good for the university for taking the action that it did. Just as a the fine line between being a casual passerby and a peeping tom. A casual passerby is one that is walking and happens to catch a glimpse but a peeping tom is the one that stops and actually peeps in the window. Was this student taking pictures from what appears to be an upperstory window as he looks to be shooting down and just happened to catch the pic or did he linger. How many photos were snapped.

Finally, let us look at the finding of a violation to the UPENN network use policy. We too have an acceptable use policy for our network. That includes the use of the network to display or transmit pornographic images. As a photographic artist lets look at the fine line between porn and art. When does it become porn? Usually when the person who is viewing it says that it becomes porn is the best standard. I have adjudicated cases of violations to our use policy. When the student says well I was looking at this porn site and.......... then yeah it is porn. The line, however, can get very muddy at times. We had a student who liked to take pictures of themself naked and put them on a website. All of which he used the university system to do. The photos did not depict any sexual acts rather were pretty artistically done photos of the student. However, the student was in an obviously sexual state of mind. I live in a very conservative part of the country so the case was reported and adjudicated. The student, an art minor, claimed their freedom to express themselves artistically the report indicated that the person found the images offending. There is that fine line. My office did not find a violation had occured but after speaking with the student and showing the student the complaining parties side of the case and pointing out that we lived in a very conservative community the student pulled the pictures although left a reference that examples of his artistic nudes were available on request. So once again we have to look at the photographers intentions. Was his intentions to photograph a sexual act and broadcast that sexual act using the university resources?

Unfortunately we may never know what happened in the hearing. As a conduct adminstrator I can tell you that all of those records are sealed by federal statutes. That is often the problem of conduct cases until they go to court and are unsealed by a court order. We only see what is being reported by those feeling that they have been harmed by the system. We cannot see the university’s justification for the decision nor even the evidence used in the decision. Give the university a break here folks until you can see otherwise. I often see people waive banners even on my campus stating that the decisions made by office were unjust. However, it is often the case that I and the student know the whole truth and I cannot disclose that information and the student chooses not too because of course they are the one being shown to be the good guys in the case. SO don’t make a decision on either side until you see all the facts of the case.

Conduct Adminstrator, at 10:14 am EST on December 1, 2005

have him arrested ?

Griffith Brownlee, I find it interesting that you could “have him arrested.” You have control over the police? And if they did arrest him you actually know that he could be convicted under a specific substantive law. I think you are bluffing.

In fact, “unauthorized videotaping” statutes are very narrowly drawn, and require that the target not have an expectation of privacy where they are being recorded. Perhaps you can show me the statute in your state which allows you to “have him arrested” for taking a picture of you in plain view.

“False light” is a tort, which, while somewhat nuanced, usually occurs where an accurate picture is displayed next to an inaccurate quote.

Larry, at 10:29 am EST on December 1, 2005

“reasonalble expectation of privacy”

I’m a photographer as well as a teacher of it.

As far as I can tell the only thing this kid did wrong was publish the photos to a school server. Which pass word protected or not is surely against the terms of service. That was truly stupid of him and if he can have a lawyer or at least someone who can tell this guy Michele A. Goldfarb the difference between public and private will be the only thing that I’m sure they will be able to make stick.

If the photographer was on public property or his own property (his own dorm room would fall under this if he is paying rent) and sees this, he is legally able to photograph it. They are having sex against a window; there is no “reasonable expectation of privacy". If they were on the other end of the room even with the window open then they would have a “reasonable expectation of privacy” even if you could still see them, but they are not.... They are against the window.

And I think that it should be explained to the “injured party” that she and her partner are lucky not to be charged with such things as indecent exposure. Using the photo based on editorial content or even social commentary could be debated. I don’t know in what context the photos were used though. If the photos were placed on his site with “hey look at this” or worse something derogatory “look at that _ss!” then a case for injury or false light is justified. If the photos were used with text that comments on the occurrences of sex in the school dormitories then that falls under editorial use and there is no false light. This photo could run on the front page of the school newspaper with a story about sex in the dorms and the paper would be well within it’s rights as long as it did not make a value judgment of the couple.

Someone in the comments section mentioned a model release. That would only come into play if he was selling the photo or selling access to the site to see the photos.

erice, Photo Instructor at Arkansas State University, at 10:58 am EST on December 1, 2005

Ricky, I don’t think anyone has been charged with a crime.

Larry, at 11:26 am EST on December 1, 2005

Alan, They can both be true, because mid-level administrators usually default to two propositions: 1) people who claim victimhood have a presumptively valid claim; and 2) people that make accusations are entitled to anonymity. Both are legally suspect, but they have a surprising amount of popularity.

Larry, at 12:32 pm EST on December 1, 2005

Re: last comment

Both could be true because the people in the picture aren’t readily identifiable. It could have been anyone having sex in that room (a roommate, a maid, those lifesize blow up dolls) if the person in the picture hadn’t complained to the university that she was the one in the pictures.

Susan B., at 12:38 pm EST on December 1, 2005

Identifying the person in the photograph

The student who was having sex was theoretically able to be identified because the student who shot the picture also posted a shot of the entire building, which would allow a dilligent (and bored) person to figure out which room it was.

Also, apparently Penn has wisely decided to drop the charges:http://www.dailypennsylvanian.com...lay.v/ART/438f8524b694f?in_archive=1

eric, Assistant Professor and UPenn Alum, at 7:36 pm EST on December 1, 2005

Given we are in a high-tech age with sophisticated photo equipment and software, how do these factors impact the legal interpretation of “public” view?

It use to be that anything was game as long as special telephoto lenses were not used and the photographer was shooting in/from public space. The idea was that if you could see it with your eyes (or a lens that duplicated our vision) then you had the right to photograph the scene.

Seems to me that enhancement abilities have to factor into the discussion. Perhaps the degree that one goes to “enhance” the image would reflect on intent.

diane bugeja, Photojournalist, at 2:23 pm EST on December 3, 2005

EASY SOLUTION, COMMON SENSE

THE NUDE SEX ACTORS DID IT ON PURPOSE, (ACTUALLY BRAKING LEWD AND INDECENT EXPOSURE LAW I’M SURE). THE GUY WITH THE CAMERA HAS THE RIGHT TO FILM THE BUILDING WHETHER OR NOT SOMEONE HAPPENS TO BE SHOWING IN A WINDOW. IT’S A NON ISSUE. JUST FORGET IT. THEY GOT AWAY WITH THERE PUBLIC SEX. NO PARENTS COMPLAINED THAT THEIR KIDS WHERE SEEING ANYTHING. THE CAMERA GUY HAS HIS PICTURES AND HE GETS TO HAVE THEM AND DO WHATEVER HE WANTS WITH THEM. THAT’S THAT. CRAIG

craig hatcvher, B.A., TEACH. CERT. MASTERS DEGREE at UNIVERSITY of WASHINGTON, at 5:30 am EDT on October 22, 2006