Right to privacy versus artistic expression
I won’t waste half of this entry rehashing the Allure nightclub story. It’s been covered to death in this region and you all know about the sexually provocative photos that were taken and posted online.
The club was subsequently closed by the NLC, for reasons that are still not clear.
After all that coverage and commentary, I was left with one unanswered question: how is Kirill, the self-described “slut whisperer,” able to post such images without written consent of his subjects?
When I worked in the agency world, we produced a lot of print and video advertisements for clients. Many models were used in these productions and in every case, signed release forms were obtained from models. This was a big deal. If we didn’t get a signed release, the image was not used. Our firm’s legal counsel was adamant about this.
So how is it that signed permission is required for something as innocuous as a newspaper ad, while a lewd photographer can photograph partially nude young people and post their images online, with no apparent permission at all?
I couldn’t reconcile the two, so I contacted David Fraser, a lawyer with McInnis Cooper and one of Canada’s leading internet, technology and privacy lawyers.
First, Fraser noted that the incident took place in a nightclub, where there is a diminished expectation of privacy. The legality of posting such photos hinges largely on whether the image is used commercially or for journalistic or artistic purposes.
“It depends on the circumstance and the purpose of the photograph,” Fraser said, adding that there are federal and provincial privacy laws in place to protect us against unreasonable invasion of privacy.
“If I were a citizen or journalist and took a photo of people in a bar, doing whatever people do in bars, they likely would not be able to sue, at least not successfully, because it wouldn’t be an invasion of privacy… Advertising purposes are different… You cannot use somebody’s image for advertising purposes without their permission.”
To cut to the chase: signed permission is not necessary when photos are taken for artistic or journalistic reasons, but absolutely compulsory if taken for commercial purposes. Like it or not, Kirill’s output would be considered “artistic works” by a court of law.
But if Kirill decides at some point to sell compilations of his work, as DVDs or digital downloads, wouldn’t that be considered “commercial” purposes?
“It might be,” Fraser said. “It’s on the line. I hesitate to say something here that might be interpreted as legal advice. Artists have historically sold their work. That is how they make their living. And because they do that, does that make it ‘commercial use’? And I think there is an argument to make that no, it doesn’t, that’s simply part of being an artist. Artists would otherwise be relegated to the sphere of producing their work and giving it away – they have to make a living at it… Now if the bar owner was taking these pictures that were part and parcel of their commercial operation, you could also get into a messy sort of area – did the bar owner hire the photographer to take the pictures to promote the bar, in which case that could be considered commercial. So it’s very fact-specific and you end up in a sort of gray area.”
Complicating matters is the fact that subjects appear to be posed in most photos.
“They don’t appear to be candid. So it would likely be the case that the people whose photos were being taken knew they were being taken, and by posing for them they’ve implicitly consented to have their photo taken. Whether you can say they’ve consented to every anticipated use of it, I don’t think so, but certainly on the artistic purpose side that may cover his base.”
Another layer of complexity: Kirill’s web site is hosted in the United States, an entirely different legal jurisdiction.
“There’s a cross border aspect that makes it more challenging,” Fraser said. “Even if you had a basis in Canada to have a picture taken down, the guy is not in Canada so a Canadian court order will not mean much to him.”
I noted that people reacted with outrage to this story, and most viewed it as exploitation – not art. There was a suggestion in the early days of this story that some people photographed were under-age, so I asked Fraser a hypothetical question: what if an under-age person was photographed nude in this setting?
“You’ve raised a whole host of issues. To be exploitative, I don’t think that disqualifies it as being art. Certainly I understand that the prurient and exploitative nature of this – and frankly a lot of stuff that the photographer says is misogynist, and he actually acknowledges that he is misogynist – is offensive. I find it offensive, though other people may not. But when it comes to the child pornography side of it, if people are under the age of 18 and are exposing themselves, then it arguably qualifies as being child pornography, and the creation, possession and dissemination of it is criminal. There wouldn’t be any criminal responsibility on behalf of the young person, it would be on behalf of the person who photographs and disseminates it.”
To summarize, there is likely no legal recourse here for any of the young women who were photographed, presuming they are of legal age – those images will be online pretty much forever.
“One good thing,” Fraser added, “is that they don’t name people in most of these photos (at Kirill’s site) and prospective employers are usually searching by name.”
The bottom line, Fraser says, is to be careful whenever you are out in social settings. Smartphone cameras are everywhere and virtually all are just a touchscreen away from the Internet.
"I think people need to exercise good judgment. I think I’m going to sound like an old man – and I don’t think I’m that old, just level-headed – but because of the nature of my practice I’ve seen many circumstances where information that people have put online, or allowed to be put online, has come back to haunt them in a significant way. The reality of the situation is that the Internet creates almost a permanent record. It is very difficult once information is there to have it taken down… You just need to be aware and mindful of the long term consequences. Frankly, I’m glad that when I was 18 and illegally going to bars that there weren’t photographers and the Internet at the time. There might have been photographers (present) but all those pictures are tucked away somewhere. So when you look for information about me online it’s all stuff as an adult… nothing that would be disparaging, problematic or embarrassing that would be an impediment to me getting a job. That’s not necessarily the case for young people today.”