Suppose the guy who was photographed nude lived across the street from an apartment building.
Then he doesn't have a reasonable expectation that his backyard is not overlooked by others, and if he still chooses to sunbathe nude then he has made an informed decision on that basis.
Likewise, if double-decker buses routinely drove down the road the Google van used and people on the top level would see over into the gardens, then there might be a reasonable expectation of being overlooked from time to time. (That still doesn't excuse redistribution of a sensitive image, but I don't think you can blame someone who captured such an image unintentionally at that point.)
But as far as we know, neither of those things was the situation in the case we have been discussing, so attacking the sunbather on those bases is just a straw man argument. Context matters.
In Google's case, the intent of their stuff is not to violate privacy
I think you are giving Google way too much credit. Google's entire business model is predicated on collecting the maximum amount of information about people that it can. Google actively uses information that is not normally public to further this process. And Google has made serious mistakes that have caused such information to be distributed to other people, as recently as the past few weeks.
I think the general question of how to treat observations made using specialised equipment that can detect more than a human alone is a tricky one, and something that privacy laws are going to have to confront head-on as technology improves. In Streisand's case, it was a plane, but anything from a satellite looking down onto private property to a listening device that can pick up private conversations inside another building would prompt the same question, as indeed does using the Google camera van here.
If the observation is incidental and does not reveal anything sensitive (which is a subjective judgement you'd have to make on a case by case basis) then I tend to take the view of "no harm, no foul".
However, I think it is reasonable to expect anyone using equipment with the potential to invade privacy to act with due respect for others. As far as I'm concerned, that means all of:
not deliberately observing what would normally be a private act
not allowing such an invasion through negligence (i.e., where it could reasonably have been anticipated and avoided)
dealing quickly and sensitively with any genuinely accidental invasion of privacy, including promptly destroying all related records.
For example, you've probably gathered that I have no sympathy for Google here, because it is obvious that mounting a camera up high enough to see over walls into people's back yards is going to upset some people and will almost inevitably capture some moments that were intended, and reasonably expected, to be private. Even if you stretch to arguing that this was the first time anyone tried anything like this and Google didn't realise what might happen, that defence doesn't stand up at all if they continue to capture more pictures in the same way after complaints about the early observations start coming in and the safeguards are known to be inadequate.
Had the Streisand case involved paps with telephoto lenses flying past, snapping photos of a party where personal friends were sunbathing in a revealing state that they would normally have expected to be private, then as far as I'm concerned it would have been fair to lock up the paps and anyone else who knowingly incited or profited from the photography for as long as any copy of the photos was found to be in circulation.
In reality, AFAIK, the Streisand incident only involved photography from a distance that neither was intended to reveal nor did in fact reveal anything personally sensitive, so "no harm, no foul" applies in that case IMHO.
If you are in view of the public there should never be any expectation of privacy.
Really? So you'd have no problem with someone following you around everywhere, looking over your shoulder and broadcasting any credit card numbers they could see even momentarily?
Sitting outside your home and carefully recording when everyone comes and goes, to build up a database of when the home is likely to be undefended^Wunoccupied?
Or maybe hanging around outside a school, working out which of the little girls walks home on her own?
Climbing up a ladder outside someone's window, when their curtains are closed, and looking through the slight gap where the fabric doesn't overlap at the top?
Concealing a video camera in a bag, and carrying it low enough to film up skirts?
Using official CCTV cameras mounted in public areas to look through second floor apartment windows?
The world isn't nearly as black and white as you make out, and any useful notion of privacy and public/private places needs to take into account the shades of grey.
I'm not saying that's all they have to do, because there are still many other concerns with equating a tool like Street View with a casual observer walking by. But yes, lowering the cameras to a point of view where someone could realistically anticipate an observer being there would be a start.
Why don't you try reading about the cases that have been discussed here? AFAICS, several of them are/were specific criminal prosecutions or court/legislative rulings in their respective jurisdictions, so the laws cited in each case would be the answer to your question.
As for your claim that there are few laws prohibiting this kind of behaviour, quite a few places have a general voyeurism law for a start. Moreover, there are blanket privacy rules such as article 8 of the European Convention on Human Rights.
That is Google's problem, not ours. If they can't do what they want while complying with the law, then that's just tough. IMNSHO, there have been way too many free passes and legal loopholes created in recent years to benefit Internet-related businesses that have trouble following the same rules as everyone else. I, for one, welcome our new enforcing-the-law-for-corporations-too overlords.
Leaving aside the fact that you are completely wrong and many laws do protect privacy in various ways even outside your own home, Google seems to believe that you also don't have privacy within the walls of your house, if they can mount a very high camera that can see over those walls.
Fortunately, the law appears to disagree with them.
If it's not technically possible for Google to automatically blur faces, then they need to hire people to do manual blurring or forget the whole thing in EU area.
Even that might be dubious, since after all real people would still be viewing private images. The fact that they would be Google employees rather than the whole Internet isn't really the point.
You do realise that European-level courts have ruled several practices of the British government illegal, including some relating to privacy, in recent months? The fact that the government here is illegally failing to comply with those court rulings and getting away with it is disturbing, but what more would you have the EU do?
In any case, the British government at least has some degree of sovereignty and accountability to its electorate to contend with as a consequence. Google is a mere corporation, and contrary to the apparent expectations of some of its executives, it does not yet have the power to legislate itself above the law or to break the law with impunity.
In what way does any law relevant to this discussion mandate the impossible? The law may make a certain business model unviable, but that is a very different thing.
That wooshing noise was the point flying over your head. The burden for preventing such a clear and abusive invasion of privacy should not lie with the potential abusee, and a system where people (or corporations) can invade your privacy and then share the results with the world unless you actively opt out does not scale.
I prefer the approach taken by Japan, where this over-the-wall problem was common given typical Japanese architecture and infringements were widespread, and Google was forced to throw away the lot.
Future quote from A Lawyer, EU Chief Privacy Officer:
"No-one is perfect. In the real world, people occasionally make mistakes, and reveal things publicly that they did not expect or intend to share with the world. As you demonstrate no willingness to take this into account, we are imposing draconian laws that basically kill your business model. If your business model dies because many people will find it offensive, maybe you shouldn't have been doing it in the first place."
I'm quite sure the IOC (and other major sports promoters) would like the copyright on every image taken, but I've never understood what their legal basis for making such a claim would be. Do they require that everyone attending sign an agreement assigning all rights in any recordings they make to the IOC, or something along those lines?
A small annual fee is chickenfeed for that huge privilege.
You seem to have forgotten the parts where the creator of the work invests a potentially large amount of time and/or money to make it in the first place and then agrees to public distribution, neither of which they are under any obligation to do.
Giving up the ability to make and distribute further copies for a limited time might be considered chickenfeed compared to the huge privilege of having others' work freely available in public afterwards.
Personally, I'm a big fan of the fact that we can format-shift, and make copies of friends' music, and stuff like that.
Don't you pay for that privilege, though, via some sort of tax/levy system? It's not as if this is a something-for-nothing deal where Big Media is getting ripped off.
There is a third kind of older programmer: disillusioned with crappy management but still wanting to do development, they strike out on their own. They either go freelance as some sort of contractor/consultant, or found their own company and bring in other people to do the business side of things while they stay technical.
My objection (in this part of the wider discussion going on) is to the implication that if you can't measure the loss, you can't be penalised at all. Some losses can obviously be significant, yet you can't possibly know their true value, so a court awarding damages would have to make a reasonable judgement; consider someone who has probably lost a lucrative career, yet whose earnings for the next 30 years clearly aren't known precisely. Some damages simply don't have a dollar amount attached, but if the justice system is to deter those who would cause such damage, then some sort of punitive damages must still be awarded. As I understand the description originally given by spun, there is no protection under US-style defamation laws in either of these cases.
I'm sorry, but you and I appear to be in different conversations. Where have I ever even suggested that something like what you wrote would be reasonable, or that I would support arbitrarily high damages in cases where exact quantification was unrealistic?
My point is, you need to convince a jury that you were harmed, and that is easier to do if the harm is measurable.
True enough, and I have no problem with that. But from your earlier description, the requirements you advocate seem to be a lot stronger.
You said you the person making the defamatory claim must know that it is false and must make the claim with malicious intent. That suggests that destroying someone's career merely through gross negligence is fine, so that for example a newspaper would be perfectly entitled to report any old gossip from dubious sources that it didn't know to be false, with no responsibility to make a reasonable effort to verify the story before running it. I'm not sure that's quite what the principle of "freedom of the press" is supposed to protect.
You also said that the claim must cause "measurable" harm. I don't mind a requirement to show that, say, "significant" harm was caused, but "measurable" implies a quantitive assessment. You can reasonably believe that someone's life has been screwed up by the consequences of a particular claim without necessarily being able to label the degree to which it is screwed up with a dollar value, as surely as you can know that someone was going too fast past a school as the kids came out without knowing whether they were doing 60 or 62. The kind of legal weaselry that lets drivers who do that get off because no-one had a calibrated speed trap set up, even if five witnesses who can demonstrate reasonably accurate judgement of speed all say the driver was going way too fast, is something I detest. I find the argument that no harm was caused unless you can absolutely quantify it to be similarly naive.
Now, for a court to assess a proportionate award of damages, that is a different question. But a simple finding of fact, that damage to some meaningful degree was caused, should not IMHO require such an absolute measurement if the other evidence in the case is sufficiently compelling.
A requirement to convince the court of a genuine causal link is perfectly reasonable. I have never argued otherwise, at least not deliberately; did something I wrote unintentionally imply this? However, an absolute requirement to quantify the damage caused by that link may not be so reasonable. You can acknowledge that a significant level of damage has been done without having to put a value on it to five significant figures.
Also, keep in mind that we are only talking about claims that are both untrue and with credibly damaging. We're not talking about political free speech, or truth that hurts, or innocent satire. If you don't like it, then don't say things about other people that aren't true and might hurt them. A five-year-old could tell you that doing so is nasty and not acceptable behaviour. I find it remarkable, and more than a little disturbing, that some adults apparently can't.
Yes, that's definitely one of the worst. Asking someone to commit a specific crime is one thing. Helping someone to commit a specific crime is another. I don't mind the law penalising people who do these things, but some vague notion that you are trying to affect someone's feelings and that any actions they take afterwards are somehow your responsibility is a different matter.
Slashdot Mirror
Suppose the guy who was photographed nude lived across the street from an apartment building.
Then he doesn't have a reasonable expectation that his backyard is not overlooked by others, and if he still chooses to sunbathe nude then he has made an informed decision on that basis.
Likewise, if double-decker buses routinely drove down the road the Google van used and people on the top level would see over into the gardens, then there might be a reasonable expectation of being overlooked from time to time. (That still doesn't excuse redistribution of a sensitive image, but I don't think you can blame someone who captured such an image unintentionally at that point.)
But as far as we know, neither of those things was the situation in the case we have been discussing, so attacking the sunbather on those bases is just a straw man argument. Context matters.
In Google's case, the intent of their stuff is not to violate privacy
I think you are giving Google way too much credit. Google's entire business model is predicated on collecting the maximum amount of information about people that it can. Google actively uses information that is not normally public to further this process. And Google has made serious mistakes that have caused such information to be distributed to other people, as recently as the past few weeks.
I think the general question of how to treat observations made using specialised equipment that can detect more than a human alone is a tricky one, and something that privacy laws are going to have to confront head-on as technology improves. In Streisand's case, it was a plane, but anything from a satellite looking down onto private property to a listening device that can pick up private conversations inside another building would prompt the same question, as indeed does using the Google camera van here.
If the observation is incidental and does not reveal anything sensitive (which is a subjective judgement you'd have to make on a case by case basis) then I tend to take the view of "no harm, no foul".
However, I think it is reasonable to expect anyone using equipment with the potential to invade privacy to act with due respect for others. As far as I'm concerned, that means all of:
For example, you've probably gathered that I have no sympathy for Google here, because it is obvious that mounting a camera up high enough to see over walls into people's back yards is going to upset some people and will almost inevitably capture some moments that were intended, and reasonably expected, to be private. Even if you stretch to arguing that this was the first time anyone tried anything like this and Google didn't realise what might happen, that defence doesn't stand up at all if they continue to capture more pictures in the same way after complaints about the early observations start coming in and the safeguards are known to be inadequate.
Had the Streisand case involved paps with telephoto lenses flying past, snapping photos of a party where personal friends were sunbathing in a revealing state that they would normally have expected to be private, then as far as I'm concerned it would have been fair to lock up the paps and anyone else who knowingly incited or profited from the photography for as long as any copy of the photos was found to be in circulation.
In reality, AFAIK, the Streisand incident only involved photography from a distance that neither was intended to reveal nor did in fact reveal anything personally sensitive, so "no harm, no foul" applies in that case IMHO.
If you are in view of the public there should never be any expectation of privacy.
Really? So you'd have no problem with someone following you around everywhere, looking over your shoulder and broadcasting any credit card numbers they could see even momentarily?
Sitting outside your home and carefully recording when everyone comes and goes, to build up a database of when the home is likely to be undefended^Wunoccupied?
Or maybe hanging around outside a school, working out which of the little girls walks home on her own?
Climbing up a ladder outside someone's window, when their curtains are closed, and looking through the slight gap where the fabric doesn't overlap at the top?
Concealing a video camera in a bag, and carrying it low enough to film up skirts?
Using official CCTV cameras mounted in public areas to look through second floor apartment windows?
The world isn't nearly as black and white as you make out, and any useful notion of privacy and public/private places needs to take into account the shades of grey.
I'm not saying that's all they have to do, because there are still many other concerns with equating a tool like Street View with a casual observer walking by. But yes, lowering the cameras to a point of view where someone could realistically anticipate an observer being there would be a start.
That's a ridiculously extreme argument. Apply it to every company not just Google and you'll see that doing business is impossible.
It's ridiculously extreme to expect a business to follow the law?
Or to understand that what someone is doing in the grounds of their own home, hidden from normal view by a high wall, should be considered private?
Why don't you try reading about the cases that have been discussed here? AFAICS, several of them are/were specific criminal prosecutions or court/legislative rulings in their respective jurisdictions, so the laws cited in each case would be the answer to your question.
As for your claim that there are few laws prohibiting this kind of behaviour, quite a few places have a general voyeurism law for a start. Moreover, there are blanket privacy rules such as article 8 of the European Convention on Human Rights.
That is Google's problem, not ours. If they can't do what they want while complying with the law, then that's just tough. IMNSHO, there have been way too many free passes and legal loopholes created in recent years to benefit Internet-related businesses that have trouble following the same rules as everyone else. I, for one, welcome our new enforcing-the-law-for-corporations-too overlords.
Here we go again.
Leaving aside the fact that you are completely wrong and many laws do protect privacy in various ways even outside your own home, Google seems to believe that you also don't have privacy within the walls of your house, if they can mount a very high camera that can see over those walls.
Fortunately, the law appears to disagree with them.
If it's not technically possible for Google to automatically blur faces, then they need to hire people to do manual blurring or forget the whole thing in EU area.
Even that might be dubious, since after all real people would still be viewing private images. The fact that they would be Google employees rather than the whole Internet isn't really the point.
You do realise that European-level courts have ruled several practices of the British government illegal, including some relating to privacy, in recent months? The fact that the government here is illegally failing to comply with those court rulings and getting away with it is disturbing, but what more would you have the EU do?
In any case, the British government at least has some degree of sovereignty and accountability to its electorate to contend with as a consequence. Google is a mere corporation, and contrary to the apparent expectations of some of its executives, it does not yet have the power to legislate itself above the law or to break the law with impunity.
In what way does any law relevant to this discussion mandate the impossible? The law may make a certain business model unviable, but that is a very different thing.
That wooshing noise was the point flying over your head. The burden for preventing such a clear and abusive invasion of privacy should not lie with the potential abusee, and a system where people (or corporations) can invade your privacy and then share the results with the world unless you actively opt out does not scale.
I prefer the approach taken by Japan, where this over-the-wall problem was common given typical Japanese architecture and infringements were widespread, and Google was forced to throw away the lot.
Future quote from A Lawyer, EU Chief Privacy Officer:
"No-one is perfect. In the real world, people occasionally make mistakes, and reveal things publicly that they did not expect or intend to share with the world. As you demonstrate no willingness to take this into account, we are imposing draconian laws that basically kill your business model. If your business model dies because many people will find it offensive, maybe you shouldn't have been doing it in the first place."
I'm quite sure the IOC (and other major sports promoters) would like the copyright on every image taken, but I've never understood what their legal basis for making such a claim would be. Do they require that everyone attending sign an agreement assigning all rights in any recordings they make to the IOC, or something along those lines?
Sure, but if we're talking about someone paying an ongoing annual fee (and we were) then we're not talking about abandonware.
A small annual fee is chickenfeed for that huge privilege.
You seem to have forgotten the parts where the creator of the work invests a potentially large amount of time and/or money to make it in the first place and then agrees to public distribution, neither of which they are under any obligation to do.
Giving up the ability to make and distribute further copies for a limited time might be considered chickenfeed compared to the huge privilege of having others' work freely available in public afterwards.
Personally, I'm a big fan of the fact that we can format-shift, and make copies of friends' music, and stuff like that.
Don't you pay for that privilege, though, via some sort of tax/levy system? It's not as if this is a something-for-nothing deal where Big Media is getting ripped off.
There is a third kind of older programmer: disillusioned with crappy management but still wanting to do development, they strike out on their own. They either go freelance as some sort of contractor/consultant, or found their own company and bring in other people to do the business side of things while they stay technical.
My objection (in this part of the wider discussion going on) is to the implication that if you can't measure the loss, you can't be penalised at all. Some losses can obviously be significant, yet you can't possibly know their true value, so a court awarding damages would have to make a reasonable judgement; consider someone who has probably lost a lucrative career, yet whose earnings for the next 30 years clearly aren't known precisely. Some damages simply don't have a dollar amount attached, but if the justice system is to deter those who would cause such damage, then some sort of punitive damages must still be awarded. As I understand the description originally given by spun, there is no protection under US-style defamation laws in either of these cases.
I'm sorry, but you and I appear to be in different conversations. Where have I ever even suggested that something like what you wrote would be reasonable, or that I would support arbitrarily high damages in cases where exact quantification was unrealistic?
My point is, you need to convince a jury that you were harmed, and that is easier to do if the harm is measurable.
True enough, and I have no problem with that. But from your earlier description, the requirements you advocate seem to be a lot stronger.
You said you the person making the defamatory claim must know that it is false and must make the claim with malicious intent. That suggests that destroying someone's career merely through gross negligence is fine, so that for example a newspaper would be perfectly entitled to report any old gossip from dubious sources that it didn't know to be false, with no responsibility to make a reasonable effort to verify the story before running it. I'm not sure that's quite what the principle of "freedom of the press" is supposed to protect.
You also said that the claim must cause "measurable" harm. I don't mind a requirement to show that, say, "significant" harm was caused, but "measurable" implies a quantitive assessment. You can reasonably believe that someone's life has been screwed up by the consequences of a particular claim without necessarily being able to label the degree to which it is screwed up with a dollar value, as surely as you can know that someone was going too fast past a school as the kids came out without knowing whether they were doing 60 or 62. The kind of legal weaselry that lets drivers who do that get off because no-one had a calibrated speed trap set up, even if five witnesses who can demonstrate reasonably accurate judgement of speed all say the driver was going way too fast, is something I detest. I find the argument that no harm was caused unless you can absolutely quantify it to be similarly naive.
Now, for a court to assess a proportionate award of damages, that is a different question. But a simple finding of fact, that damage to some meaningful degree was caused, should not IMHO require such an absolute measurement if the other evidence in the case is sufficiently compelling.
A requirement to convince the court of a genuine causal link is perfectly reasonable. I have never argued otherwise, at least not deliberately; did something I wrote unintentionally imply this? However, an absolute requirement to quantify the damage caused by that link may not be so reasonable. You can acknowledge that a significant level of damage has been done without having to put a value on it to five significant figures.
Also, keep in mind that we are only talking about claims that are both untrue and with credibly damaging. We're not talking about political free speech, or truth that hurts, or innocent satire. If you don't like it, then don't say things about other people that aren't true and might hurt them. A five-year-old could tell you that doing so is nasty and not acceptable behaviour. I find it remarkable, and more than a little disturbing, that some adults apparently can't.
Yes, that's definitely one of the worst. Asking someone to commit a specific crime is one thing. Helping someone to commit a specific crime is another. I don't mind the law penalising people who do these things, but some vague notion that you are trying to affect someone's feelings and that any actions they take afterwards are somehow your responsibility is a different matter.