back to article Alleged Peeping Tom claims First Amendment right to upskirt

The Massachusetts Supreme Judicial Court is mulling just whether an alleged upskirter's right to snap women's nether regions is defended by the US constitution, and indeed whether women who unwittingly expose themselves in public have any right to privacy. Michael Robertson, 31, was cuffed back in 2010 for allegedly attempting …

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  1. M Gale

    I'm sure there is a difference between taking pictures of a slipped boob at the Superbowl, and sticking an upward-pointing spycam in your boots or hiding cameras in changing rooms.

    1. Anonymous Coward
      Anonymous Coward

      Interesting point of law, that it requires being undressed to validate the crime.

      Definitions of offences can be quite complex especially when they have to prove the persons state of mind, such as if dishonesty was involved.

      Now if the victims in this case had not been wearing underwear would the offence have been absolute?

      Or would the courts decide that if you go on public transport without wearing your knickers more fool you, you bought it on yourself?

      1. Killraven

        "Now if the victims in this case had not been wearing underwear would the offence have been absolute?"

        Keep going down that path; if true, then not wearing underwear, regardless of the quantity of other clothing, would be considered Public Nudity.

        1. Anonymous Coward
          Anonymous Coward

          And public nudity should not be a crime anyway, I am of the opinion that if they wanna be naked, let them be naked...

          1. Lamont Cranston
            Joke

            Having had the misfortune of walking around my home town during the height of summer,

            I've decided that burqas should be mandatory, for both sexes.

    2. Anonymous Coward
      Anonymous Coward

      @M Gale

      Exactly. They should be able to word a law so that if the photographer had to make a determined effort to get the shot then it's an invasion of privacy (probably get most of the paps with that defintion as well) however if the subject is sitting spread legged on a wall it isn't, or if the wind blows at an inopportune moment then it's an act of god or somesuch.

      In all cases you should expect some privacy in changing rooms even if they are comunal.

      1. squigbobble

        Re: @M Gale

        Totally agree. This is far too good a compromise to actually make it to statute.

      2. RobHib
        Megaphone

        @Chris W -- Re: @M Gale

        ...photographer had to make a determined effort to get the shot then it's an invasion of privacy

        That's a reasonable proposition and it ought to be so both here and in many other privacy situations as well. Paparazzi who invade the privacy of others by unduly going out of their [normal] way would be another example.

        That said, I reckon we'd better get used to it, as they say 'we ain't seen nothin' yet'. In the last few decades cameras have miniaturized I guess between ten and a hundredfold. When they miniaturise even further and we've drone cockroaches or similar equipped with cameras creeping about then what are we going to do? How on earth will that be policed, irrespective of what the law says?

        Don't say it won't happen for it clearly will. Technology marching on, the legit surveillance industry etc., etc. will ensure that it does, thus it'd be very foolhardy to assume these micro cameras won't be diverted for such nefarious uses.

        Being male and nothing to write home about, I'll never be worried about micro cameras sneaking up on my rather uninteresting body parts, but I sure do worry about other forms of intrusive surveillance to which I'm likely to be exposed.

        Miniaturising the camera by another tenfold will effectively end privacy, and I find that concept very worrying.

  2. Anonymous Coward
    Big Brother

    Should have wrapped the founding fathers in copper wire....

    We could probably power the East Coast with the free electricity right about now :)

  3. Ketlan

    Fucking perv...

    How about smacking Michael Robertson in the gob for taking upskirt pix of my partner - is that illegal? I don't care - legal or not, he'd better not get his camera near me or mine. Fucking pervert.

    1. Anonymous Coward
      Anonymous Coward

      Re: Fucking perv...

      Bit of an extreme reaction here, usually found on redneck websites but at least the spelling is reasonably correct.

      1. Anonymous Coward
        Anonymous Coward

        Re: Fucking perv...

        So I take it your single ?

        You must be or will soon be if you tell your parnter you wouldn't smack a guy for taking upskirt photos of her.

        Or may be you have a hole in the toe of your shoe ?

      2. Jedit Silver badge
        Mushroom

        "Bit of an extreme reaction here"

        I can see why you chose to be anonymous. There is nothing extreme about getting angry with someone for committing what is essentially a sexual assault on a loved one.

        1. Anonymous Coward
          Anonymous Coward

          Re: "Bit of an extreme reaction here"

          It's a photo not a sexual assault, ask any body who has been sexually assaulted if they'd rather had had a photo taken instead.

          All the thump the perp brigade sound to be very insecure and the type who would thump someone just for looking at their partner.

          Personally, no, I wouldn't get angry, amused more than likely. Would I intervene if I saw it happening? Of course I would but I hardly think physical violence is an appropriate reaction.

          1. Jedit Silver badge

            "ask any body who has been sexually assaulted if they'd rather had had a photo taken"

            Tell you what, why don't I ask my sister how she felt when some slimy pervert stuck his phone up her skirt and took a photo? Oh, wait, I don't have to - I already know that she was shocked and upset by it. I also know that had I been there, said pervert would have eaten his phone without salt.

            You are speaking from a position of ignorance, Chris. Taking an upskirt photo without permission may not be on the same level as groping a woman or pulling off her clothes, and it's certainly nowhere near actual rape, but it's still a violation.

            1. Lamont Cranston

              @jedit

              My wife got groped on the tube, a few years back. She was quick enough in turning round to catch him in the act, foisting upon him the look that she normally reserves for unruly pupils. Much more effective than thumping him one.

              Doubt I'd find it so amusing if it'd been anything more serious, mind.

        2. Anonymous Coward
          Anonymous Coward

          @Jedit

          It's a bit perverted sure, its an invasion of privacy definitely, but sexual assault? No.

          I think calling this sexual assault is an insult to anyone who has really been sexually assaulted...

          But worth risking jail time by attacking the perv? Not really.

          And of course this is another of those gender bias crimes, if a Scotsman had a photo up his kilt taken by a women, I would expect there would be no severe reaction. When I was at school girls would walk into the guys changing rooms and barely look up.

          People are immature if they find the human body so shameful they consider an invasive photo the same as sexual assault.

          1. Anonymous Coward
            Anonymous Coward

            @Jedit

            Congratulations, you have just insulted and belittled every woman who has suffered a real assault, sexual or otherwise, with your pathetic rant. May God help your sister if anyone actually touches her. I suspect in that case you'd need quite a bit of help as well.

            1. gazthejourno (Written by Reg staff)

              mod hat on

              Play nicely. Hugs and kisses, El Mod.

              Or else.

            2. Swarthy

              Re: @Jedit

              It seems we have a disconnect on the meaning of the term "sexual assault."

              I believe that Jedit has the definition more correct, focusing on the term 'assault'. What Chris W is referring to assault would be more correctly 'battery'.

              Assault (in non-sexual terms) can be as minor as using overly harsh words (Deliberate understatement: overly harsh in this case being an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.). After physical contact is made, the offence may become battery (an intentional unpermitted act causing harmful or offensive contact with the "person" of another.).

              So, an up-skirt photo would be sexual assault.

    2. Anonymous Coward
      Anonymous Coward

      Re: Fucking perv...

      Ones man's trash is another man's treasure.

      I mean you might be the kind of person who likes to slather jelly all over your partner without eating it.

      That to me is a waste of food.

      Chill out.

    3. Anonymous Coward
      Anonymous Coward

      Re: Fucking perv...

      Why stop there? Nothing like a good, old-fashioned lynching for those people doing things we don't like eh?

      1. Stacy

        Re: Fucking perv...

        How is that an extreme reaction? F***ing perv seems appropriate in this instance.

        If someone was doing that to me I would also be mightily pissed off. The analogy to other sex games is incorrect. If this was two consenting adults, then so be it. Trying to get random up-skirt shots on trains is not two consenting adults.

        1. Anonymous Coward
          Anonymous Coward

          Re: Fucking perv...

          that depends on what you mean by "consent".

          it sounds like the argument here is whether someone wearing a skirt has implicitly "consented" to having pictures taken by wearing a something that allows their privates to be viewed - albeit from an uncommon angle.

  4. the_LocoCoyote

    Sigh.....

    Yes, this is the kind of thing we spend our time on these days.....never mind all those other minor "things" going on in the world....Hunger, poverty, environmental disasters both natural and man made....

    no..we need to spend time and money discussing whether anyone has the right to be an @zzhole in public by taking up skirt photos.

    1. Anonymous Coward
      Anonymous Coward

      Re: Sigh.....

      I'm puzzled, in that case why don't you go do something about those minor things instead of moaning on here?

      1. Zacherynuk

        Re: Sigh.....

        Perhaps he is to busy compiling a tertiary report as to whether somebody called somebody else a pleb. He's probably got a team of 20 officers looking into that right now - no time for up-skirt stuff.

    2. Anonymous Coward
      Anonymous Coward

      Re: Sigh.....

      I wasn't aware that there was a global order in which things should be sorted out.

      So Poverty, hunger, sanitation, war seems like a good place to start, we can leave sexual harrasmant of people in countries where these problems have been solved until somalia enters the first world then, I guess?

      1. Steve Knox
        WTF?

        Re: Sigh.....

        So Poverty, hunger, sanitation, war seems like a good place to start, we can leave sexual harrasmant of people in countries where these problems have been solved until somalia enters the first world then, I guess?

        Where are these countries where poverty, hunger, sanitation, and war have been solved?

        1. Martin Budden Silver badge

          Re: Sigh.....

          Liechtenstein?

  5. Charles 9

    Interesting angle, invoking rights clash. If this is pursued, it will be up to the judge to draw the line since although the photographer has rights, so does the subject. And unless engaged in mundane activity, precedent establishes that art with a human subject (photography is considered art in this case) requires consent on both sides: an artistic subject can request the work not be published.

    ---

    "Yes, this is the kind of thing we spend our time on these days.....never mind all those other minor "things" going on in the world....Hunger, poverty, environmental disasters both natural and man made...."

    Because most of these are not within the purview of courts. These kinds of things usually require legislatures. Good luck getting legislatures to take the long view.

    1. Anonymous Coward
      Anonymous Coward

      Consent on both sides?

      Do you realise how many times a day your image is taken and used without consent?

      Consent must only be given if the image is used for commercial purposes and only when the person can be identified so basically if you can only see someone's bum up a skirt then they become unidentifiable. From the story above he could even have claimed it wasn't the same girl (unless other photos proved otherwise)

      There is a reason you have to sign a photo release form but when your out in public and someone snaps a shot the area becomes cloudy but obviously the generalised idea is that it is wrong so the police make the arrest without even checking they have the right laws to cover it.

      The case in the story is interesting though, with mobile phones with cameras now where is the privacy line drawn.

      1. Lottie

        Re: Consent on both sides?

        What would happen if the lady in question had a unique piece of jewelry or tattoo in their nether regions? That would be enough to identify them (at least to anyone else who has seen them naked) so would a release form be necessary?

        Surely, though, if something is *inside your clothes* it's private and not a public space?

        I'll be interested to see the outcome here, they have the opportunity to really fuck up or to make a very good point....

      2. Ian Watkinson
        WTF?

        Re: Consent on both sides?

        Wrong wrong wrong wrong wrong.

        Consent doesn't need to be sought or given even if the picture is to be used for commercial purposes.

        Some of the most famous photos in history have been used for commercial purposes. Without the permission of the subject.

        Burning monk in Vietnam anyone? Plenty of other examples.

        If you're walking about in the street, people can take your picture. It's their picture, you have no rights to it.

        IF and ONLY IF

        You had no expectation to privacy in the first place. (You're out in public remember)

        The police get this wrong all the time.

        http://www.amateurphotographer.co.uk/photo-news/536087/fish-and-chip-photographer-arrest-unlawful-say-police-chiefs-update-with-police-statement

        The police knowing the law...nope not most of the time in this case.

        I'd suggest in this case, the women had a reasonable expectation to privacy, she'd covered up her knickers, so unless she goes and does a Marilyn, (again no consent given by Marilyn) then she's covered under the reasonable expectation of privacy side of it.

        How many of the rioters in London gave permission for their photos being taken and printed in the paper?

        Did any of them sue the papers after?

        The only part of this that's slightly cloudy, is that it's possible without touching a lady (I guess) to take their photo up skirt.

        If We compare this to men, if a women ripped your trousers off on the tube and then took a picture of you in your pants, would you be happy about it, or feel violated?

        Actually, scratch that, if you're Scottish in traditional dress and a women shoved a camera to take a picture of up between your legs, how would you feel?

        1. Mayhem

          Re: Consent on both sides?

          @Ian

          I sadly have to agree with you here - they need to clarify the laws related to "reasonable expectation of privacy"

          After all, the red tops seldom get successfully sued for the pictures taken by paps, and most of those constitute fairly direct invasions of privacy as far as the individuals are concerned.

          Today I get the feeling "in public" means "viewable from the neighboring hilltop with a small telescope for a lens and clearly reflected in a shiny metal object outside".

          Upskirt photography is fairly offensive, but in many countries it isn't technically illegal.

          1. Ian 55

            Re: Consent on both sides?

            @Ian

            You're talking about the law in England and Wales.

            This is the other Boston (one of them, anyway...) where privacy laws are a bit different.

        2. MrXavia

          Re: Consent on both sides?

          different countries, different laws though

          As it stands the UK is pretty sensible with its photography laws & invasion of privacy laws, even if the police are not always 100% on it, what is needed is a better understanding of the laws by the public AND a clear compensation scheme for unlawful arrest, police need to be less inclined to arrest someone going about their lawful business, i.e. police need to only arrest someone when they NEED to arrest someone not just for minor things that harm no-one.

          Now if I was in a kilt, I think I'd be embarrassed if a girl took a photo up my kilt, but would I report them to the police? no, I would not. But if I had my trousers pulled down I might do, although I suspect the police would tell me to bugger off... and they would be right if it was an isolated incident

        3. Lamont Cranston
          Joke

          Re: if a women ripped your trousers off on the tube

          Chance'd be a fine thing.

        4. TheOldGuy

          Re: Consent on both sides?

          "Actually, scratch that, if you're Scottish in traditional dress and a women shoved a camera to take a picture of up between your legs, how would you feel?"

          This happens a lot in Scotland. I know this because back in the 80's I worked in a photo lab checking prints as they came out of the machine. Amazing how many guys wore kilts to weddings......

  6. localzuk Silver badge

    Expectation of privacy?

    Is there an expectation of privacy if you're in public?

    I'm inclined to agree with the pervert here. He wasn't being covert, using a phone to take the shots. He wasn't going out of his way to get pictures of nudity, he was taking photos of things that were visible should anyone care to look.

    1. Stacy

      Re: Expectation of privacy?

      How the hell is an up-skirt shot a thing that is visible?

      Taking a picture of people on the tube. fine

      Should something in a normal picture be visible due to the way that someone is sitting, still pervy, but I can see your point.

      Trying to go for up-skirt shots does not fall under the above though.

    2. Anonymous Coward
      Anonymous Coward

      Re: Expectation of privacy?

      Surely the line should be relatively easy to draw? If the image is of a part of the body that the person did not intend to reveal then it's wrong? So if she's wearing a bikini then that's fine, if you're angling your camera to get up her skirt or down her cleavage, it's not?

    3. localzuk Silver badge

      Re: Expectation of privacy?

      Bear in mind, I am referring to agreeing to his interpretation of the law, not agreeing with the activity. The law needs to protect people, so if his interpretation is correct, the law needs to change.

      The thing about angling the camera is full of issues though.

      What if its a skirt and they're stood on a raised platform, or on a floor above and you can see? Or what if its a boob shot and you're above them? You start to generate some very odd cases when you start getting that specific. The law is meant to be clear, and 'what the person intended to be visible' is very difficult to enforce in a public setting.

      1. Stacy

        Re: Expectation of privacy?

        I don't agree. Just because you are under a platform does not give you the right to take a photograph up someone's skirt. It is not an unintended consequence, it is a deliberate act. The same for trying to get a shot of someone's cleavage from above.

        I don't think this has to be that nuanced. Trying to get take photos up peoples skirts = wrong - how is that hard to understand?

        As for what a person intended to be visible, I would say that is very easy:

        And I sitting with my skirt hitched up and sitting with my legs apart inviting people to take photos? If not then I would say that a person is not expecting someone to take a photo of their knickers.

        1. localzuk Silver badge

          Re: Expectation of privacy?

          But what if someone else doesn't want someone to take a picture of something else which with a little 'angling' is visible? But not related to underwear. In public of course.

          This is why the court case is needed, to determine these things. The law is somewhat ambiguous on this, and as such a judge needs to clear it up. And as it stands, my reading of the law agrees with the pervert's.

          1. Stacy

            Re: Expectation of privacy?

            OK, seriously scared now by the type of people on this forum...

            Being down-voted for saying that you shouldn't take an up-skirt shot just because you are in the lower deck of a train and so are looking upwards, and someone may be in a skirt on the platform.

            Which means that someone thinks that is what you should do in that situation. I hope that someone gets help.

            As to the different types of pictures.

            I don't like having my picture taken full stop, I never have done and probably never will. There is nothing I can do about it except never leave the house.

            The same does not apply to taking a photo up my skirt. Ever.

            With the exception of stalking someone, taking someone's picture where you have to bend to certain angles around someone else is not creepy. Bending around anything to get a picture of someone underwear is! How hard is that to grasp!

            1. MrXavia

              Re: Expectation of privacy? @Stacy

              Its not that it is hard to grasp, I agree an upskirt shot is a violation of privacy, but it is hard to define what is restricted (all laws should start from an 'everything is allowed' and then just restrict acts that harm others)

              Take this as an example...

              A women is drenched in a sudden summer downpour, everything she is wearing turns see through & clingy... If someone was to take a photo at that point, is that legal or illegal in your view? I can see that being a very beautiful shot depending on the location.

              There will always be accidents that expose parts of the body that may not have been intended to be shown, and with the ubiquitous camera phone that moment will get captured, just remember your body is not unique..

              1. Lamont Cranston

                @MrXavia

                You could at least ask permission (retrospective, perhaps) after taking your picture of the drenched woman, then delete it if she's not particularly happy about it.

                You grubby little herbert.

              2. Stacy

                Re: Expectation of privacy? @Stacy

                @Mr Xavia

                I would agree that your situation is a tough one. But that is not what is being discussed here.

                What is being discussed here is a person taking up-skirt photos. Not public wet t-shirt (which is still pervy unless you ask for permission), but up-skirt. Deliberately going out of your way to violate someone's person with a camera.

                Again, how hard is that to grasp?

            2. Old Handle

              @Stacy

              I don't think anyone is disagreeing that what he is accused of is creepy and wrong. The questions at hand are whether it should be illegal (not the same thing!), whether it actually was illegal under existing law, whether that law it unconstitutionally broad, and—during one part of the comment thread—whether what he did warranted the use of physical violence.

              If anyone actually said taking upskirt pictures is OK, I must have missed it, and I most definitely don't share that opinion.

              1. Stacy

                Re: @Stacy

                @Old Handle

                Try reading the comments again, there are plenty saying that is someone is wearing a skirt then she is asking for it, or saying that it is no different to to taking a photo of a face when someone doesn't want it.

                Or it is OK if the situation makes it easy (the comment about being above or below).

                I'm going to get down voted for this again, but seriously, the comments here do scare me - I may be that person in the skirt or dress, and these people may be on a train when I am commuting. So much acceptance of something like this is just wrong in this day and age.

                1. localzuk Silver badge

                  Re: @Stacy

                  The issue is entirely a legal one. Morally, this behaviour is wrong. But the law doesn't work by moral judgements, it works by interpreting legal documents. As it stands, the interpretation by the perv here appears to be the legally correct one.

  7. Thought About IT

    Look at these appallingly salacious pictures!

    "For example, say a woman is breast feeding in public and someone who is morally opposed to this ... takes a picture."

    Does Michelle Menken work for the Dail Wail?

  8. Aristotles slow and dimwitted horse

    Oh right...

    I thought we'd grown in understanding and progressed beyond the base "she asked for it..." debate.

    Obviously not.

  9. Marvin O'Gravel Balloon Face

    Seems clear enough to me that if it's illegal to push a camera under a changing room door to capture women in various states of undress, the same should go for pushing a camera up a skirt.

    Both skirt and changing room door serve to protect the dignity and modesty of the person in question, and any violation of that principle is a violation of the reasonably held expectation of a person to travel unmolested on public transport.

  10. Patrick R

    Plead guilty, case closed.

    Are people changing or is Justice doomed to evolve the opposite way of "civilization"?

    1. Stacy

      Re: Plead guilty, case closed.

      Justice changing civilisation, or blood sucking morally bankrupt lawyers?

      1. Anonymous Coward
        Anonymous Coward

        Re: Plead guilty, case closed.

        I have to laugh. There are plenty of women who will wear a bikini in public (on hot days of course..usually). Yet a flash of their underwear is a problem? I can't see the difference. Unless they are of the transparent frilly variety or they are worried about having dirty underwear (wash yer bums!).

        People make such a fuss over nudity and yet here they are not even nude. Are we going backwards to where even a flash of an ankle is 'risque'? Stupid prudes.

        1. Charles 9

          Re: Plead guilty, case closed.

          The thing is the amount of exposure is at the person's discretion. If a woman feels bold enough to wear a bikini, then she doesn't care too much about showing leg. On the other hand, a woman in a full-length skirt or other very covering attire is basically setting the limits on what she wants seen. The choice of clothing suggests a person's attitude about exposure; should we not respect that?

  11. paulc

    Charged him under the wrong charge...

    pure and simple... the DA needs a good kicking and the case thrown out...

  12. MrXavia

    Actually it does sound like the law is badly written, so this might be permitted by law..

    No matter how you look at it, sticking a camera under a skirt is an invasion of privacy....

    The law should be simple... If you can reasonably expect privacy, then taking a photo of you in that situation is wrong..

    But WTF is 'partially nude'? is it a quantum state of clothing?

    1. Charles 9

      Put it this way. If no nudity at all means you're fully clothed, and full nudity means complete exposure, then partial nudity means something that would be necessary for what we call "decency" is missing...but NOT ALL of it. A woman wearing only a bikini bottom, for example, is partially nude.

  13. Graham Marsden
    WTF?

    I just want to point out the irony...

    That the next story from El Reg is "Ooh! My naughty SKIRT keeps riding UP! Yup, it's ... INTERNET EXPLORER"

  14. Ian 55

    Aren't lawyers wonderful?

    That is all.

  15. Roger Jenkins

    Assult?

    I agree that when in public that one cannot have an expectation of privacy and that anyone may photograph you without permission. Lets forget for a moment the privacy issues and instead, why not ask, if someone comes along and shoves a camera up your dress, could that not be treated as common assult rather than under indecency laws?

    1. Irony Deficient

      Re: Assault?

      Roger, the statutory common assault of England and Wales is only applicable when the victim “apprehends immediate unlawful violence” (in context, violence here means touching). As far as I can tell*, assault in Massachusetts is still a common law crime, and so would be generally defined as “attempted battery”. If the Peeping Tom in question did not touch his “subject”, and had no intention of doing so, then it would not be a Massachusetts assault, since it would not have been an attempted battery. However, there are many varieties of statutory assault in Massachusetts; perhaps being charged with one of those might have been more suitable in this case.

      * — I am not a lawyer.

  16. Anonymous Coward
    Anonymous Coward

    blimey, what in the world will they make of that x-ray photoshopping technique...

  17. Anonymous Coward
    Anonymous Coward

    Partially Nude?

    I can't speak for this specific incident but just for example, consider this...hot girls frequently wear VERY short skirts and thongs out to clubs. If that kind of outfit wasn't meant to attract attention, what was it intended for? If you can see it with your eyes, why is a photo worse?

    Some of the outfits I have seen leave nothing to the imagination, damn near every crevice is clearly visible when simply walking down the street. The girls at Hooters have more clothes on.

    Seems to me that if you want to put your body on public display then you have to live with the consequences. Not saying you have to wear a bhurka but maybe something less revealing would be in order.

    Same thing goes for beach attire, thong bikini's leave no doubt that the girl is at the very least, a bit of an exhibitionist. So now you can't take pictures at the beach? Ever see those reality shows about LasVegas bartenders?

    If you don't want anyone looking at your naughty bits, perhaps you might try not making them so obvious?

    How can you have any expectation of privacy in conjunction with your false modesty?

    1. Anonymous Coward
      Anonymous Coward

      Re: Partially Nude?

      I don't get why they bother to even wear those small bikinis... Oh right that would be because nudity is bad.. Sometimes I wish I lived in Germany... they have the right idea when it comes to body image, just get naked and who cares! (seriously if you go to Germany and are body conscious, avoid the saunas/spas they will politely ask you to leave if you wear anything. I find it a very refreshing attitude!)

      1. Lamont Cranston

        Re: I don't get why they bother to even wear those small bikinis

        Nudity is not bad, per se, but naked people always look better with something on, in my experience.

  18. Sir Sham Cad

    Partial Nudity as point of law

    But I thought they had the right to bare arms over there?

  19. chris lively

    This is a difficult problem. The defense lawyer is good. If I'm ever in trouble I know who to hire as this is likely to go up a few court levels.

    Going forward how do you construct a law so that photographers have permission to photograph people in public, without getting their permission, but prevent certain types of photos taken?

    The upskirt photo is not of a naked person and the subject isn't in a state of undress. If you claim angle of the shot, then how do you define what is or is not acceptable without impacting a whole class of valid photography.

    In short, I'm not sure I see a way to legally define this. Maybe the law should be a little less exacting and instead leave it up to a jury to decide what an acceptable photograph is... However, that way will easily lead to a large number of "wrongly photo'd" cases and huge expenses.

    Yes, upskirt photos are obviously wrong and should be punishable. I just don't see how that can be withou impacting a lot of other things. So, kudos to the defense attorney. She's going to "win" this one.

  20. steve 124

    And just in time for Christmas 2013...

    Introducing the new Nike Airforce One-Shot.

    It's ergonomically designed soles will let you dominate the court while it's built in bluetooth enabled 20Megapixel camera means you'll never miss a shot... on the court or on the bench!

  21. Brian Allan

    If you're going to be ashamed of a picture taken in public, cover up! Simple as that. If you wish to go commando, expect the worst... maybe a picture on the web of your exposed parts!?

  22. Chozo
    Devil

    Not out of the bush yet

    Was the perv uploading or selling the photos for distribution on a specialist website? because we all know how ugly things get when the copyright lawyers come out to feed.

  23. Roger Mew

    unskirted

    I wear a kilt a lot of the time and am told that if someone takes a photo of me deliberately then that is invasion of my privacy, then whether or not the person with the camera stuffs it up my kilt is surely academic,as it becomes a case of invasion of privacy.

    I was out the other day and a woman with a shortish skirt bent over the handlebars of her push chair, baby carriage. I got a full view, nice white ones with a bit of lace around the legs, either she was not used to wearing skirts, or she enjoyed doing it, probably the former, however, should I have photographed her then surely that is an infringement of invasion of privacy laws in as much as she did nit give her permission.

  24. Chromatix

    Okay let's take a step back and discuss this properly.

    First of all, the First Amendment doesn't apply. This should be plainly obvious - it's about what you can *say*, not what you can *see* or *record*.

    The laws that *should* apply are the ones about privacy and public decency, and the court should consider how they interact with each other here. My take on the matter is:

    Public decency laws essentially require people to keep certain parts of their bodies *private*. The precise definition of which parts varies considerably over time and jurisdiction, but the typical standard in Western society is hips-to-upper-thigh for both men and women, plus most of the breasts for women.

    Clothing which performs this task adequately is readily available, and (for women) usually relies on the assumption that an observer's eyes are above the subject's waist. Even short skirts are generally designed to hang down to cover the area between the thighs when the wearer sits down. Underwear is intended as a backstop, to deal with momentary malfunctions of the skirt's normal dynamics (eg. wind) and corner cases where the central assumption is invalid (small children, escalators, ladders). Some people enhance this by wearing shorts or a petticoat under their skirt.

    Note that even in those corner cases, people are generally expected by society to avert their gaze. Parents of young children are to teach them that looking up skirts is wrong, and try to prevent them from doing so - in return, most people understand that small children are not malicious. Therefore, a woman wearing a skirt and normal underwear can be considered to have a "reasonable expectation of privacy" against deliberate exposure of their *underwear*, never mind what said underwear covers, to the extent that their skirt would normally keep it covered.

    So now we come to the breastfeeding woman on the Tube. Here, the breast is exposed more than normal societal standards expect, although the nipple itself spends most of the time covered by the baby's head. Most sensible people would agree that this is not obscene - it does not "outrage public decency". At the same time, this woman has deliberately exposed that part of her to view, so she no longer has an expectation of privacy regarding it - until, of course, she finishes feeding her child and covers it up again. In my experience, many (not all) women try to find somewhere with fewer people to watch her - for example, near one of the shortcut passages in IKEA, rather than beside the main paths.

    That is the difference between an upskirt photo and a candid photo that contains a breastfeeding mother. In one case, the photographer is violating an expectation of privacy; in the other, he is not. It is the same distinction between taking a photograph of a minor Royal on a public engagement, and taking another photo of the same person using a huge telephoto lens to penetrate the large estate she lives on.

    Let's round out the discussion by illustrating two examples that *do* violate public-decency laws. The most obvious example of this would be a streaker at a sporting event, who takes off every stitch of clothing and runs out in front of a crowd of tens of thousands, specifically to cause outrage and embarrassment (not to mention disruption to the match in progress). A more nuanced example is the recent protest by a group of Finnish art students, where one of them posed as a nude model for the others - right in the middle of Tampere railway station. After a discreet interval, a policeman politely asked her to get down and get dressed - which she did, having made her point, and I understand that no charges were filed.

    1. localzuk Silver badge

      You'll want to double check your definition of the first amendment - photography and artistry have long been determined to be covered by first amendment rights - there is decades of case law supporting that assertion.

      The rest of your blurb relies on definitions that simply aren't in the laws they're working with here.

  25. TimDimJimmyJim

    "up-Skirt" a general term?

    What I wish to know is the circumstances that this happened. The term "up-skirt photo" is a generalisation and could completely change the perspective of the situation. What I mean by this is that any shots that are taken of a person wearing a skirt and show's underwear or private parts could be classed as an up-skirt photo regardless of the distance, angle, or intent.

    If the person in question was sat opposite the female in this case and took photos without any contact that revealed her underwear then that would be different than if he had physically touched her or her property (the skirt) to take a photo. I personally think that this is a fundamental difference as to whether this person has acted immorally.

    Personally, I think there is nothing immorally wrong with a person taking photos where they are not in any conducting any physically exchange with their subject (when in a public place). However, that view is flipped if he had physically lifted someones skirt.

    If the former statement is the case then I would argue that the man may be acting pervtedly. However, is being "perverted" wrong or a universal agreed set of characteristics? I'd say no. Just because something makes you feel uncomfortable doesn't mean that you have the right to impede on someone else right's or freedoms (this is a generalised statement that is applicable to many different issues but I feel is often over looked by many people). However, if the case is the later of the statements (if he physically touched the clothing of the women) than I would say that he is acting immorally as nobody has the right to touch you or your priority unless consent is given (or in cases where your rights have been given/taken away).

    Just my view.

    1. Charles 9

      Re: "up-Skirt" a general term?

      For the record, a covert upskirt photo in a flat public setting almost always means a shoe camera (as in a camera fitted into a shoe looking out a hole in the top of the shoe) positioned between the subject's legs and probably in video mode to (1) prevent any clicking sounds and (2) improve the chance of a good shot.

      This is generally regarded as voyeurism (as in attempting to gain an indecent view beyond barriers--such as doors, privacy windows, and in this case a dress--meant to safeguard privacy and not protected by the first amendment. Sounds to me like the voyeur is challenging basically on these grounds:

      1. The restriction on laws prohibiting the freedom of speech states no exceptions.

      2. So where does Congress get the authority (for that matter, where does Congress get the authority to prohibit "Fire in a Crowded Theater")?

  26. Anonymous Coward
    Anonymous Coward

    He has no reasonable expectation to not have his snoopy nose broken.

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