Non-Consent, Nude Photos and the Law

In a very short space of time, smartphones have become ubiquitous. The ability to take photos and videos and share it with the internet instantly means that almost any event is now documented and communicated to the world.

The dark side of this is that smartphones are increasingly used as tools of harassment, bullying and assault, especially of women. The above video, featuring the Chief of the Australian Army, Lieutenant-General David Morrison, addresses the problem of sexism within the armed forces, specifically a case where female soldiers and officers had had nude and derogatory photos and language emailed around to other members of the army. The video has made waves today, with many expressing their approval of such a strong anti-sexism message.

“The standard you walk past is the standard you accept,” he says.

This is only the latest in a growing list of public cases of men using nude or explicit images to humiliate, harass, bully or blackmail women. There is the Steubenville rape case, where teenage boys documented the assault of a young woman. There is the rape and suicide of Rateah Parsons, where images of her assault were then spread around and used to bully her further. Californian student Audrie Pott suffered similar abuse and also committed suicide. And Amanda Todd chose to share her awful story on Youtube before she too killed herself, humiliated and bullied because of a photo.

Just yesterday I found this question on Yahoo Answers, in which a young man speaks of how a group of his “friends” decided to strip a drunk girl naked and take photos of her for “fun” before he stepped in and took her home (worryingly, he was more concerned that his friends had called him ‘gay’ than he was about the assault).


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Meanwhile, “revenge porn” sites proliferate and numerous pages appear on Facebook asking men to rate images of ex-girlfriends and women they’ve slept with.

Hell, a few months ago I changed my mind about swimming topless at the beach thanks to the realization that everyone now has camera phones and a pic of me could pop up somewhere, accompanied by abuse. Previously I wouldn’t have cared; it would have just been between me and the people there on the day. They might have looked, laughed or pointed but the potential for problems would have been minimal. Now, a decision to swim topless or nude can equal global exposure.

Clearly, there are plenty of unethical people out there who have no problem with using private images for negative purposes. And the internet means that the private can very easily become public, often without the consent of the person in the image.

I wanted to write about this because I’ve found myself heartily agreeing with attempts by lawmakers to criminalize this behaviour; specifically, I think there should be laws that make it illegal to publish (i.e post on the internet or publicly electronically share) nude photos of anyone without their consent.

At the same time I feel uncomfortable about this idea because in the past I’ve always been a champion of internet freedom and I’ve long opposed online censorship. This kind of law has the potential to go wrong somewhere and become a way of suppressing free speech. It’s currently not illegal to photograph people in a public place and I do think it’s important that this freedom continue unabated.

Nonetheless, I think it’s perfectly fair that we as a society agree that publishing nude or sexual images of an individual requires their explicit consent.

Our patriarchal and sex-negative society still attaches shame to images of the human body; for a woman to be photographed nude is seen as a shameful thing to do, it’s a black mark against her reputation. Nudity, especially sexual nudity, invites judgement and abuse. It means a woman is a slut, a whore, a woman to be spurned. This is why nude and sexual images have power and can be used as a weapon.

So long as this attitude persists, nude images created and distributed without consent cause harm. We should do our best to prevent that harm.

I also want to point out that the porn industry is built on the notion of consent. Indeed, the sex negativity surrounding nude images is why porn stars are paid so much. I make porn and consent is absolutely fundamental to the process.

Every photo and movie in porn is created after the model and porn producer have explicitly signed documents wherein the model consents to the use of their image. They understand that their nude images will be published and they are compensated accordingly. On top of that, porn makes sure that the people in the images are over 18.

There is no reason why this ethic shouldn’t apply to every nude and sexual image created using smartphones and the internet.

Certainly the practicalities may be tricky here and there. It’s not a matter of getting written legal documents every time someone shares a nude selfie with a lover. We shouldn’t start getting paranoid that cute pics of kids in the bath are suddenly child porn. Intent and context should absolutely be taken into account. But the same legal principle that I and the rest of the porn industry adheres to should apply to anyone who seeks to make a nude image public, especially when it can be shown that the publication has caused harm.

And if there isn’t consent and the victim feels harmed, they can then easily pursue justice without having to jump through legal hoops for it.

This Slate piece does a good job of discussing the ins and outs of the issue (how to define “nudity”? In what context was the photo taken?). And the site Without My Consent offers a fantastic resource to victims of online harassment.

I guess I just wanted to state my support for a law that criminalizes online, image-based harassment (although I will gladly hear reasons why I’m wrong to think this).