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Saturday, February 26, 2022

Photo Law (Boobs)

The UK is currently working on a big Crime and Punishment Bill that everyone hates (technically it's the "Police, Crime, Sentencing and Courts Bill" no Oxford comma wtf?) but it includes a provision that some of the more stick-up-the-ass photo commentators love. This provision modifies the Sexual Offences [sic] Act of 2003 which currently has a section on up-skirt photography, by adding some equivalent provisions concerning the photography of breast-having people in the act of breast-feeding.

It's a bit of a swamp to dig through, because the legal documents in play are all "edit the previous legal document to include a script for editing yet another document" and the result has several pathways through it that describe an offence [sic].

Now, I don't much care about this law. It's arguably just an attempt to codify current social norms, which is good, I guess? It's an extension of the anti-up-skirting law, which has hardly ever actually been invoked. The new law is even thinner and less likely to be invoked. Most likely the UK will see one or two cases a year where someone freaks out about a dude with a camera, and almost all of those will get tossed because it will turn out to be insanely hard to meet the standards laid out in the law. My judgement is that this is a sop intended to marginally boost support for a wildly unpopular omnibus bill.

But what the hell do I know? I Am Not A Lawyer. Spelling the word "law" taxes me.

Still, there is an element I find interesting.

If I read this correctly, the following scenario is an offence [sic]:

Taking, without consent, a photograph of a breast-feeding person in public, which photograph does not reveal any bits and pieces of interest (no boobs, no nipples visible), specifically in order to masturbate wildly to said photograph later.

While is is certainly a social norm to frown upon this sort of thing, I think it opens genuinely new legal territory.

Most law, as far as I know, which restricts things photographic is built around either some normal expectation of privacy (that is, you're arguably not supposed to be looking there at all even without a camera) or around something to do with publishing (commercial or quasi-commercial uses of people's likenesses) or some combination (e.g. you're allowed to look there, but it's iffy, so you can't sell the photos.)

This is the first law I am aware of in which, if you merely remove the camera, the action is completely legal. You may look at a breast-feeding person, especially if you're not peeping at their body parts which would normally be covered (boobs, nipples) and if you want to masturbate wildly to that memory later, well, have at it I guess. It's not illegal to masturbate, in a lot of places.

This law takes an unambiguously legal situation and renders it illegal purely by the introduction of a camera to substitute for memory. You could, I guess, spin out some goofy hypotheticals "what if I have a retinal implant or some other device that I used for normal vision?" I think the law might actually make it illegal for someone with a retinal implant to look at a breast-feeding person if their intent is to get turned on. This would be kind of hilarious, but it's a sort of dumb scenario.

Am I arguing against the law? Not really, as I say, it merely codifies what already exists socially. Now instead of just yelling at the guy you're pretty sure is a creep, you can call a cop. The only difference is that — maybe — the cop will do something ineffectual.

Do I think it's the nose of the camel inside the tent? Well. Certainly the people who applaud this law tend toward theories of photography that kind of want to make it all illegal. The theory that switching from eyes to camera Causes Enormous Harm is very popular. It's not really a secret that a lot of photo commentators ultimately want to simply ban photography entirely if they can't figure out a way to prevent everyone except their friends from doing it. Authoritarian governments do love to authoritarian, and if they can find some dipshits to carry their water, they might double down!

This is, for instance, a legal theory that cops absolutely love. Sure, you can watch cops with your eyes all you want, but they would like nothing better than to propose that as soon as you introduce a camera, the formerly legal scenario becomes an illegal scenario. Cops are more or less constantly pushing for this one. In fact a lot of cops try to enforce this non-law all the time.

But do I really think that this law is, or will become, the beachhead from which a vast expansion will arise? Not really. I think this is a dumb sop to try to sell a rotten omnibus law, and that is the end of it.

The cops are going to get their version independently, because people keep electing jackasses.


  1. I see one obvious difference between looking and taking a photo, and that is that you can publish that photo for others to see. I have no idea if that makes a legal difference, but to my mind it makes a difference.

    It reminds of another confusing area that is being discussed at the moment. Are social media like the telephone system or are they like publishers? To me that they are neither, they're something else.

    1. Well, that's what makes this interesting. Normally is the *issue* is publication, then it is the publication which is restricted.

      In this case, publication is irrelevant.

      Combine: an apparatus, an intention, and a lack of consent, and you've got a crime.

      I don't *know* if it's unique, but it's certainly not common.

  2. Yeah, the reason people are in a snit about photographs is that they fear they'll end up online, and thus seen be ANYONE. That includes both moms worried about their kids and the police.

    I've always thought the right analogy for online social media is a real busy intersection, street corner, or crossroads. There's an infrastructure that has been laid down, but now anyone is apt to use it for any purpose, with lots of advertising. Only a fool would believe everything he sees there, and you should hold on to your child's hand.