Voyeurism and the law
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Building on from the "Debate" that happened on this forum a while back, I would be interested in hearing from people all over the world to know what is and is not legal where you live when it comes to voyeurism.
The moderators of this forum are (rightly and honorably) keen to make sure no one is encouraged or incited to do anything illegal by the posts in the Voyeurism group. I agree with that aim.
I think discussing some big questions could help users make sure they stay the right side of the line.
The basic questions:
Is voyeurism illegal per se? (Is there a crime/offence called "voyeurism"?)
- I am thinking about a law that says something like "A person shall not look at another person [in a sexual way]/[for their own sexual gratification] without that person's [express]/[implied] consent."
- I cannot imagine any Western countries could have such a law, but wonder whether it may be the case elsewhere in the world, especially in jurisdictions where the contours of the law follow religious teachings/a text held to be sacred.
Are certain types of voyeur videos illegal per se because of what they depict?
- For example, are videos of people urinating by their nature "indecent" in some countries, and therefore illegal?
Is is illegal to take a photo or a video of someone without their consent?
- I imagine there will be a great number of different rules/approaches throughout the world. In some countries, I guess it will depend on the age of the person photographed/recorded, as well as the context/setting.
- I think more advanced legal systems will probably have rules/case law covering the issue of consent, as well as individuals' expectations of privacy. In these systems, much would turn on the facts of a particular scenario - could consent be implied (because the person whose image was recorded was in public), or notwithstanding that the video was taken in public, could it be inferred that the person had an expectation of privacy (because they were engaged in an intimate/private act, such as showering or using a urinal) and had not consented?
If someone makes a voyeur video and posts it online for others to see, is the posting a separate crime? (What is this crime/offence?)
- I am wondering whether sharing by an originator is a distinct offence.
Is it illegal to post/share a voyeur video that someone else has made (i.e. passing it on)? - I am wondering whether it makes a difference that you did not originate the voyeuristic video. A big reason this would be relevant is because you could not yourself have been responsible for obtaining the consent of the object of the video. Does it matter whether the video content is sexual/"indecent"? - If so, does it need to be objectively sexual (e.g. a video of people having sex) or is the offence linked to what the person posting the video finds sexual (e.g. a video of someone running nude on a beach, or a video of someone naked in a public shower, are not inherently sexual acts) or what the person making and sharing the video thinks others will get from it (meaning, whether the target audience will find it sexual)? If the person in the video consents to the original video being taken, can they be taken to have consented to it being shared? - Here, I am thinking about the scope of the consent. If the person in the video consents to the original video being taken, it is possible that they would not consent to it being uploaded/shared with others. This raises the question: if consent to share can sometimes be a separate/different consent, whose responsibility would it be to ensure that a person who consented to the video of them being made in the first place also consents to it being shared? Can the voyeur/person who records the image legitimately presume that the consent given in respect of the original video includes consent to upload it online, in the absence an express prohibition from the person in the video, requesting/telling them not to? Or is it the other way around?Other interesting questions: Is watching/enjoying a voyeur video a crime? (Is the likely consent of the object of the video relevant? E.g. if I watch a hidden camera video (made by someone else) depicting what is said to be another person (i.e. not the video maker) in a public shower, and I doubt the object has given consent, is my watching the video a crime?) How does this interact with human rights? Does the human right to a private life extend to not having your image recorded in certain circumstances?
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It would help to define voyeurism.
Is voyeurism illegal per se? (Is there a crime/offence called "voyeurism"?)
On November 1, 2005, section 162 was added to the Canadian Criminal Code, declaring voyeurism to be a sexual offense.
Many states in the US also have voyeurism laws, however, they don't go by that name. I.e. Upskirt laws, Peeping toms laws.
Are certain types of voyeur videos illegal per se because of what they depict?
If there is consent it is not voyeurism. If there is no consent then it is voyeurism and would be covered under any laws the State would have no matter what was depicted in the video
Is is illegal to take a photo or a video of someone without their consent?
The expectation of privacy is the kicker. Taking photos videos of people in public places is legal because there is no expectation. Go into a bathroom and it will be viewed differently even if it is a public facility.
If someone makes a voyeur video and posts it online for others to see, is the posting a separate crime? (What is this crime/offence?)
Simply put, yes. There can be other criminal offensives
**Is it illegal to post/share a voyeur video that someone else has made (i.e. passing it on)?
Yes.** - I am wondering whether it makes a difference that you did not originate the voyeuristic video. A big reason this would be relevant is because you could not yourself have been responsible for obtaining the consent of the object of the video. **No
Does it matter whether the video content is sexual/"indecent"?
Voyeurism is sexual.** - If so, does it need to be objectively sexual (e.g. a video of people having sex) or is the offence linked to what the person posting the video finds sexual (e.g. a video of someone running nude on a beach, or a video of someone naked in a public shower, are not inherently sexual acts) or what the person making and sharing the video thinks others will get from it (meaning, whether the target audience will find it sexual)? **It usually goes with community moral standards and the intent of the person doing the filming.
If the person in the video consents to the original video being taken, can they be taken to have consented to it being shared?
If they have consented to be videoed then it is not voyeurism. Now if they have consented more than likely they should have known of the possibility that it would be shared.** - Here, I am thinking about the scope of the consent. If the person in the video consents to the original video being taken, it is possible that they would not consent to it being uploaded/shared with others. This raises the question: if consent to share can sometimes be a separate/different consent, whose responsibility would it be to ensure that a person who consented to the video of them being made in the first place also consents to it being shared? Can the voyeur/person who records the image legitimately presume that the consent given in respect of the original video includes consent to upload it online, in the absence an express prohibition from the person in the video, requesting/telling them not to? Or is it the other way around? The person consenting to the video would have to say at least that they didn't want the video to be shared. Again this is not voyeurism but more along the lines of a home sex tape. Other interesting questions: Is watching/enjoying a voyeur video a crime? (Is the likely consent of the object of the video relevant? E.g. if I watch a hidden camera video (made by someone else) depicting what is said to be another person (i.e. not the video maker) in a public shower, and I doubt the object has given consent, is my watching the video a crime?) **Yes, watching a true voyeur video is a crime. If there is consent there is no voyeurism.
How does this interact with human rights? Does the human right to a private life extend to not having your image recorded in certain circumstances?
In the United States the right to privacy is paramount.**
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Many thanks for your answers.
I had a look at the Canadian Criminal Code. It seems very broad indeed. I am not 100% sure a claim against a person watching a peeping Tom video that he/she did not make him/herself would be an offence under the Canadian Criminal Code.
To be guilty of the direct voyeurism offence under section 162(1), you must surreptitiously observe or make a surreptitious recording of "a person who is in circumstances that give rise to a reasonable expectation of privacy", if any one of the three following conditions is met: (i) the place the person is situated is one where he/she can reasonably be expected to be nude or having sex; or (ii) the person being observed or recorded is in fact nude or is having sex; or (iii) the observation or recording is done for a sexual purpose. It is clear to see how this applies to someone directly observing someone through a peephole (with their eyes), or someone who has set up equipment to capture videos of people in those circumstances. There is room for other interpretations, but I think "observing" is meant to mean "at the time" / "live" / "as it is happening". I don't think it is meant to cover "watching the video" later. (Would each viewing of the video be a new offence?) Further, I am not sure how "surreptitious" my observing is if I am just a recipient/downloader of a video. If I watch this video in broad daylight in a busy coffee shop, does it cease to be a voyeurism offence? I wonder whether this has been tested in a Canadian court.
Concerning the "passing on"/redistributing of a peeping Tom type video, Section 162(4) of the Canadian Criminal Code creates a separate offence. To be found guilty of this one, you would have to know the recording was obtained in the commission of the main (direct) voyeurism offence above. This means that to be guilty of an offence for publishing/copying/distributing/selling/circulating/advertising a peeping Tom video someone else made, you must know the video was obtained surreptitiously . This, in my opinion, is an exceedingly high standard for the authorities to have to prove against you. If you were not present at the time, and did not take the video yourself, it is impossible to know that it was taken surreptitiously. (Even if you suspected it, you could not know it. Perhaps if the person giving you the video told you they had made it, and they represented that they took it surreptitiously, then you could taken be on notice. But I think even this is short of the "knowing" requirement.)
It is interesting to note that the Canadian statute does not refer to consent. The issue of consent appears to be covered by the use of the word "surreptitiously".
A further search led me to the equivalent provision in the UK Sexual Offences Act 2003. To be guilty of a voyeurism offence under section 67(1) of the Sexual Offences Act 2003, you must (i) "observe another person doing a private act" (ii) do this "for the purpose of obtaining sexual gratification" and (iii) "know that the other person does not consent to being observed" for that purpose. Again, I think "observing" is probably meant to mean "observing it as it happens" rather than watching it later. Even if I am wrong about this, to be guilty of the offence requires knowledge that the person does not consent to being observed. For the same reasons as above, I think watching a peeping Tom video falls short of the offence in section 67(1).
As far as I can see, unlike the Canadian code, the UK Sexual Offences Act 2003 does not contain a separate prohibition on distributing peeping Tom videos. I suspect this offence might live in other more general legislation to do with pornography…?
Any lawyers out there from other jurisdictions care to chip in?
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This is an area where the law has not caught up with modern times.
In many places it is illegal to look in a window at someone, however, it is not illegal to install a camera and video tape someone.
AS for watching a true voyeurism video that is like buying or selling stolen property. If you know you are buying something that was stolen… you could be liable criminally and civilly.
And it would also be covered over copyright laws.
That is one of the marvels of law. Something doesn't have to be spelled out in black and white to be illegal.
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For those interested, in New York, it is called "unlawful surveillance". Here is what the New York Penal Code says:
http://ypdcrime.com/penal.law/article250.htm#p250.40To be guilty of the primary offences of unlawful surveillance in the first or second degree, you must install or use a surveillance device. These are felonies. Watching a video created by someone else is not covered by this law.
The separate offences of "Dissemination of an unlawful surveillance image" in the first or second degree, require "knowledge of the unlawful conduct" involved in obtaining the images (i.e. knowledge of the installation or use of the unlawful surveillance device). If you did not take the images yourself, or did not actually know who took them, I think it is safe to say that you will lack the knowledge required to be guilty of these offences. These are misdemeanors, not felonies.
