Photographic Abuse: Loopholes in the Law
Street photographers who make their living, or pursue their hobby, in search of the perfect spontaneous image out in the wild have enough problems with the law and with the belief in a private sphere for those who could become the subject of their work. That the law is not clear, in many aspects and not just photography, has been accepted for many years, with constant promises from politicians – especially on the hustings – that matters will be addressed, and the law reformed to make it better, precise, workable. Yet, no matter the promises, no matter the varied and various attempts to reform, there are loopholes which the less than law-abiding willingly exploit, often to the detriment of those who go about their photographic pursuits carefully and correctly.
In Lower Saxony, Germany, a man was caught secretly filming women in a sauna with his mobile phone. I do not doubt many already know of the web sites which specialise in such recordings, such photographs, and the money which can be made by the more unscrupulous. There have been several court cases taken up against well-known pornographic web sites which, despite their own rules and terms of service, have apparently welcomed the traffic, and associated income, brought by having abusive images uploaded, even images of those obviously well beneath the legal age limit. It is a constant fight, though, for those who wish to protect their own private sphere in public places: the tale of the English Member of Parliament who blocked a private member’s motion against upskirt photography is a case in point. But what when the law simply does not cover certain eventualities?
The man in Lower Saxony, following a complaint by the victims, was duly arrested and his mobile device, complete with evidence, confiscated. It came to a court prosecution with a more than unsatisfactory result. As the press release from the State legislature reports:
Nach geltendem Recht sind heimlich angefertigte Bildaufnahmen einer unbekleideten Person in der Öffentlichkeit nicht strafbar. Gleiches gilt für das Anfertigen von Bildern von durch Kleidung bedeckter intimer Körperbereiche. Denn nach der bisherigen Rechtslage sind solche Aufnahmen nur dann strafbar, wenn sie in einer Wohnung oder einem gegen Einblick besonders geschützten Raum angefertigt werden. Das heimliche Filmen oder Fotografieren in öffentlich zugänglichen Bereichen, etwa einer Sauna oder einer öffentlichen Sammelumkleide, wird hiervon bislang nicht umfasst.
Under current law, secretly taking photographs of a naked person in public is not a criminal offense. The same applies to taking pictures of intimate body parts covered by clothing. Under the existing legal framework, such recordings are only punishable if they are made in a private residence or a space specifically protected against intrusion. Secretly filming or photographing in public accessible areas, such as a sauna or communal changing room, is not currently covered by this provision.
The result: the perpetrator was found not guilty of an offense and released by the court. His mobile device was returned to him, as personal property legally held, complete with the images he had taken of the young women in the sauna. The next move comes from the legislature itself, where the minister responsible for such legal loopholes and good order in the State of Lower Saxony will petition the higher legal authorities to have a change made in the law. Until then, hard as it may be to believe, this loophole allowing sexual abuse will remain, and a lot of water will flow under the bridge: such petitions take time.
