@Big_D
And that's another question - are these things covered by existing laws?
If the behaviour is really that bad (and I believe it is) then surely there should be laws covering it. And if there are, then why make new, special laws?
I don't mean that to say that new laws aren't needed - I mean it as a genuine question: if this behaviour is already illegal under existing laws then what is the purpose of new laws covering the same situation?
To answer your question, in Australia, you only have the right to prevent the publishing of photos of you (whether online or otherwise) where you did not agree to the photo and can reasonably be said to have some expectation of privacy. If someone takes a photo of you walking down the street, they can publish that online without requiring any consent because there is no expectation of privacy in a public space.
Likewise, if you are at private location - say a bar or nightclub - and there is a photographer going around and you agree to have your photo taken (obvious posing is implicit consent) then, again, they can publish that.
I am not entirely sure what happens if someone publishes a photo of you that they shouldn't - I'm pretty sure that all that entails is the right to ask for the photo to be taken down. I don't think it's a crime to publish the photos - you would just get sued if, as the photographer, you refuse to take it down when asked to.
Which is all fine. The question is what happens if someone takes a naked photo of someone else - with their consent - and later publishes it? Let's assume that the subject has the right to ask for it to be taken down but beyond that, what? Let's say the photographer duly takes the photo down and does so promptly. Should here be a penalty or criminal conviction on top?
If so, on what grounds?
If you answer that the publishing of the photo was malicious and designed to cause harm and embarrassment, would the same apply if you took a photo of a friend who was exceptionally drunk and making a fool of himself and then you posted that online? It can be easily argued that this is cause for embarrassment and could be seen by (say) parents or in-laws or employers and thus may cause harm to the subject in that way.
Is that just as bad and just as deserving of punishment and/or criminal conviction?
If not then what criteria do you use to separate the one from the other? Is nudity inherently in some different class? If so, why? For some people, nudity is no problem at all - nothing to be ashamed of. For some people, being photographed or filmed heavily intoxicated would be far more embarrassing to them, personally and, depending on their circle, perhaps even far more detrimental. After all, pretty much all parents want their children to have sex because most want grand kids! Most, however, disapprove of their children getting riotously, uncontrollably, sickeningly, drunk and making idiots of themselves.
So how do you determine what gets treated as especially embarrassing or harmful such that the publishing of it is deemed malicious enough to warrant particular punishment where a less embarrassing photo would simple be taken down and that's it?
Given people are all different, how do we set down that which is especially embarrassing? It might be said that if it causes particular embarrassment and harm then it qualifies, but that leaves interpretation of the law as "I don't like it".
To take a very rough parallel, there are laws around saying offensive things to people, but exactly WHAT is offensive is difficult enough to pin down that no case that has ever gone before a judge in NSW (and I believe Australia) has ever been held up. That is because "I was offended" is not sufficient justification of actual offense.
One option is to say that any photo, taken in private, requires explicit permission to publish a photo online, as you say the law is in Germany. But what does that mean for popular sites like Facebook? Presumably, even in Germany, family members post photos of their get-togethers and adults post photos of their children. Is it the law (were we in Germany) that before my sister posts a photo of our last family Christmas, she must obtain the permission of everyone in that photo? What if she doesn't and, some time shortly thereafter my brother divorces his wife in particularly acrimonious circumstances and she, in her anger and bitterness (and having never got along with us) decides to target my sister by complaining about the photos from Christmas, saying she never consented to having the photos posted online?
It's a bit extreme but my point is simply that any law must be crafted very carefully to avoid it being misused.
And, again, you could restrict this to just nudity but the only reason to single out nudity is that it can cause embarrassment but there are many, MANY things that can cause embarrassment that are personal and so can't be blanket legislated against.
That's all a massively long detour but it's a complicated question and I don't believe it's a straight-forward situation with a straight-forward solution.
To repeat, I find this all reprehensible but there are many reprehensible images and texts and speeches and lyrics and actions that I find reprehensible but are legal and rightly so. Many things that a majority of people would prefer to not exist are essentially negative side-effects to protecting important freedoms.
Take something like Fred Phelps and his followers. Their actions are disgusting to me but I understand why they are allowed to do what they do - the freedom of expression that they are protected by is far, far too precious to weaken, even for those expressions the majority finds unpalatable.
Biting the hand that feeds IT
