Privacy endangered notion

Sally Peart
Sally Peart
Voyeurism has gone global on the internet but the recent suicide of a United States freshman after another student allegedly used a webcam to broadcast his sexual encounters in his dorm room has raised the stakes considerably. Technology writer Dene Mackenzie backgrounds the issue...When Rutgers University freshman Tyler Clementi committed suicide after his room-mate and another student allegedly used a webcam to broadcast his sexual encounters with another man in his dorm room, experts rushed to inspect United States laws for remedies.

The problem is that many technologies that may not be thought of as spying-type technologies are already in our hands. executive director Parry Aftab said anyone who wanted to spy on someone else could.

Laws did exist to punish those who violated another's privacy, but they had little or no bite, United States experts said after Mr Clementi's suicide became public.

The core problem is that technology is so far ahead of the rest of culture that we do not realise its collective impact.

Dunedin lawyer Sally Peart, a partner at Mitchell Mackersy Lawyers, told Signal the US situation was complicated by the strong emphasis on "freedom of speech".

Protections were often in place but were superceded by the freedom of speech provisions.

In New Zealand, there are laws and penalties regarding intimate covert recording but they are somewhat ad hoc.

There is a question as to whether New Zealand law sufficiently protected against voyeuristic behaviour.

For instance, section 30 of the Summary Offences Act 1981 identifies "peeping or peering into a dwelling/house".

Every person who was found by night without reasonable excuse was liable to a fine not exceeding $500, she said.

"I don't know why doing it in daylight is acceptable but it is not acceptable at night.

During summer, the activity could be acceptable at 8pm but not acceptable at 8pm in winter."

A section of the Crimes Act 1961 made the covert filming of intimate activity an offence punishable by up to three years' imprisonment, Ms Peart said.

Those provisions protected the kinds of intimate activity to which the Law Commission had previously referred but were confined to "visual recording", such as a photograph, videotape, or digital image.

That included a visual recording made and transmitted in real time - such as on a webcam - without retention or storage, Ms Peart said.

It was clear that the collection of offences was patchy and most of them did not specifically relate to voyeuristic behaviour at all.

The three years maximum prison sentence amounted to not much more than a slap on the wrist with a wet bus ticket where the consequences resulted in death, as in the US, she said.

Some of the cases published in New Zealand newspapers proved how difficult it was to get a penalty in proportion to the offence.

A man was seen looking in the windows of two houses about 6.30am, "watching the residents inside getting ready for the day".

It is not clear from the report whether he was on the property or looking from the street.

The man would not be caught by section 30 of the Summary Offences Act because in early April (when the incident occurred) 6.30am would be later than an hour before sunrise - even though it was the time when people would be likely to be getting dressed.

A man was caught peering through two holes drilled in the bathroom floor of a house occupied by four young women.

He would have had to grab wooden beams and haul himself into a "coffin-sized crawl space" and lie on his back to look through the holes.

Section 30 of the Summary Offences Act would not apply unless this had occurred during the hours of darkness, which was unlikely.

However, what could happen was a prosecutor attempting to prove that the unlawful behaviour of the offenders caused the death of a suicide victim, like Mr Rutgers, Ms Peart said.

"If it can be proved they had knowledge that the person was sensitive and showing his activities to others could lead to extreme behaviour, like suicide, it would be possible to run a charge of manslaughter," she said.

University of Florida professor of law Jon Mills said it was easy to intrude and those intrusions were going to occur.

"We have to both realise that and we have to learn to punish, too."

In Florida, someone who used a camera to violate a person's privacy can be charged with video voyeurism, a misdemeanour that carries a sentence of up to a year in jail.

If convicted of the crime more than once, the penalty jumps to third-degree felony, punishable by up to five years in prison.

In the Rutgers case, the students have been charged with violation of privacy, which carries up to a five-year prison sentence.

Prosecutors are reviewing what other laws, including hate crime, might apply to the case.

Victims in the US can opt to sue in a civil court to impose financial punishment on those involved, winning damages because of an invasion of privacy, public disclosure of private facts or causing distress.

But a civil suit cannot stop images from being shared over and over again online.

Prof Mills told the Orlando Sentinel that once those images were posted online, they got copied so many times.

"It's virtually impossible to get them all."

Ms Peart said technology made distribution easy and people needed to protect themselves by always being mindful that web cameras, cell phones and other handheld devices could record you anywhere or any time.

 Tips to avoid being a recorded target

Cyber-safety experts say there are steps you can take to protect yourself, including:

• Treat your cellphone and laptop like your cash card - keep them on you and in your sights at all times.

• Assume anyone holding a cellphone or other hand-held devices with photo capabilities may be taking your picture.

• Don't do anything in range of that camera that you don't want the world to see.

• Point web cameras up toward ceiling when not in use or close laptops with cameras.

• A camera on a laptop can be in use even if screen appears blank.

• Periodically use Google to search your name, your screen name or any other identifying information to ensure your image or information isn't being shared.

• The quicker you respond, the better chances you have that the images have not been copied.

- Source: Phil Lieberman, president of Lieberman Software; Parry Aftab, executive director of


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