Tag Archives: Law

The Face in Digital Space

Published in ‘The Culture of Photography in Public Space’, edited by Anne Marsh, Melissa Miles and Daniel Palmer, Intellect, Bristol, 2015

GALLERY OF ILLUSTRATIONS

That configuration of eyes, nose and mouth stuck to the front of our heads, which we call the face, not only connects the outer sociological self to the inner psychological self— the old ‘window on the soul’ idea — but it also connects one person to another in a relationship. For the philosopher Emmanuel Levinas the face was the place of authentic encounter between self and other: ‘The face opens the primordial discourse whose first word is obligation’. (Levinas 1979: 210) According to Levinas, when two faces face each other, each demands something from the other, even if it is only recognition. It is the power of ideas such as this that still underpin controversies around the role of the face in public places of social interaction. For instance, the debates around recent attempts by various European governments to ban the burqa and the niqab in public, place the face at the very centre of contemporary definitions of personal autonomy and public citizenship. (Chesler 2010)

In order to perform this social function of human interaction the face has to be abstracted away from the body so that it can enter into a system of semiotic exchange. Deleuze and Guattari called this ‘faciality’, a process that over-codes the organism of the body with other strata of signification and subjectification. (1988) To them, the face is an abstract machine of ‘black holes in a white wall’ — a technology increasingly becoming enmeshed with other technologies.

Facial history

But in many ways this process of abstraction and ‘over-coding’ begins much earlier, with John Caspar Lavatar’s popular Essays in Physiognomy from the 1770s. Lavater defined his new science of physiognomy as the ‘the science … of the correspondence between the external and the internal man, the visible superficies and the invisible contents.’ (Lavater 1885: 11) He established that correspondence by either visual analogy, where a bovine-looking person must exhibit dull, bovine personal characteristics; or by biometric algorithms, where the slope of a brow, for instance, indexed cranial capacity and thus intelligence. A brow at a high angle above the nose was the mathematical index of a large brain, but also the visual equivalent of Roman nobility. A brow at a low angle indicated a small brain, and was also literally simian. Lavater’s analogical mapping and algorithmic vectorization allowed him to compare and classify faces, but they also removed the face from the ranks of the purely human, and placed it into an abstracted morphing space which was also shared by animals. Plate 80 of his Essays in Physiognomy demonstrates this with startling clarity as Lavater’s illustrator morphs a drawing of a frog’s face through twelve separate frames. In the first frame the angles of the isosceles triangle between the frog’s eyes and its lips is, Lavater tells us, just 25 degrees. Frame by frame the frog’s eyes slowly become more almond shaped and the whole face lengthens until, by the final frame, we find ourselves looking into the face of an androgynous human. The angle between the eyes and lips of this face has now increased to 56 degrees, a facial angle shared, according to Lavater, by Aristotle, Pitt, Frederick the Great, and Apollo.(497)

Eighty years later Charles Darwin completed the project of placing the human face within the realm of animals with his development of the theory of evolution. In his wildly popular follow-up book of 1872, The Expression of the Emotions in Man and Animals, he homed in on the mechanics of the face and established that human facial expression was an instinctual animal behaviour, rather than a social language. (Darwin1 872) He demonstrated the automatic, biological mechanics of expression by artificially decoupling the external hydraulics of the facial muscles from their usual inner, instinctual motivations. For instance, for plate seven he obtained from the French scientist Dr Duchene a photograph of the facial muscles of an intellectually impaired man being twitched into the expression of ‘horror and agony’ by the external application of the terminals of a galvanic battery. He then juxtaposed this with a photograph he had commissioned of the photographer Oscar Rejlander acting out exactly the same expression. By photographically proving that muscles could be manipulating by two entirely separate methods — electricity and pantomime — to produce exactly the same expression. In this plate Darwin demonstrated that the face lay on top of the self, the face alone, without the self, could enter the plane of abstracted analysis and comparison.

Lavater’s physiognomic analogs and algorithms, and Darwin’s muscular decoupling, had the effect of conceptually delaminating the face from the body. But it was photography that then circulated that face within society. The greatest celebrity of Victorian England was the royal courtesan, partygoer, actress, beauty, and endorser of Pears Soap, Lillie Langtry. Through photography her face left the realm of her body and entered other media spaces. In Victorian England the most lubricious place where newly mobilised images bumped up against each other was the stationer’s shop window, and Lillie’s photographs were right in the middle of every window, disturbing the pre-existing social order. A writer at the time commented on:

… that democratic disregard of rank which prevails in our National Portrait Gallery of the present day — the stationer’s shop window — where such discordant elements of the social fabric as Lord Napier and Lillie Langtry … rub shoulders jarringly. (Ewing 2008: 22)

 Langtry was also the very first person in the world to find herself in a photographic feedback loop, that is, to feel the effects of her photographed face, as it circulated though Victorian visual culture, reflecting back on to her actual body. In her autobiography, The Days I Knew, she recalled:

Photography was now making great strides, and pictures of well-known people had begun to be exhibited for sale. The photographers, one and all, besought me to sit. Presently, my portraits were in every shop-window, with trying results, for they made the public so familiar with my features that wherever I went — to theatres, picture galleries, shops — I was actually mobbed. Thus the photographs gave fresh stimulus to a condition which I had unconsciously created. One night, at a large reception at Lady Jersey’s, many of the guests stood on chairs to obtain a better view of me, and I could not help but hear their audible comments on my appearance as I passed down the drawing-room. Itinerant vendors sold cards about the streets with my portrait ingeniously concealed, shouting ‘The Jersey Lily, the puzzle is to find her’. (Langtry 1925: 40)

 

Facial velocity

In the subsequent 130 years, of course, the velocity of that photographic circulation has only increased in speed and brutality. And now it is not just the mega-famous who find themselves caught up in photographic feedback loops. Erno Nussenzweig has become the chief exemplar of the ever-present possibility that any one of us can suddently become an accidental celebrity. One day in 1999 this elderly, bearded, orthodox Jewish man innocently emerged onto the sidewalk from a subway at Times Square. It wasn’t until five years later that he discovered that at that decisive moment he had been photographed by Philip-Lorca diCorcia who had set up a bank of flashlights on scaffolding to capture random passers by as they came into his camera’s plane of focus. diCorcia had exhibited the portrait at the prestigious Pace/McGill Gallery, published it in a book called Heads, sold out its edition of ten prints at between twenty and thirty thousand dollars each, and had eventually won London’s prestigious Citibank Prize with it. Nussenzweig sued for 1.6 million dollars claiming the photographer had used his face for purposes of trade, as well as violated his religious beliefs. His lawyer, Jay Golding, put his case best succinctly to the New York Post who in their report ‘What’s a picture worth — he wants 1.6 Mil’ quoted him as saying: ‘It’s a beautiful picture. But why should this guy make money off of your face?’. (Hafetz 2005: 23) diCorcia’s lawyer, however, was able to convince the judge that the photographs were taken primarily for the purpose of artistic expression, not commerce, and were therefore protected by the First Amendment.

Or consider the case of Neda Soltan. In 2009 she was videoed by the mobile phones of three separate pro-democracy demonstrators in Iran as she lay dying from a government-sniper’s bullet. After the videos went viral on the internet her face was even turned into a mask and worn by pro-democracy demonstrators at a protest in Paris. (Wikipedia ‘Death of Neda Agha-Soltan’ 2013) Meanwhile, in the hours after her death, some eager journalists mistakenly harvested a photograph of another Iranian woman with a similar name, Neda Soltani, from her Facebook page. It was this face that was used in many improvised shrines to the other, assassinated Neda. Iranian authorities then began to harass Soltani in order to get her to cooperate with them in claiming hat the original murder had been a set-up by the western media. After twelve days of harassment the other Neda was forced to flee Iran and seek refuge in Germany, from where she wrote a book about her experience, My Stolen Face. (Soltani 2012)

Or put yourself in the shoes of Nicole McCabe, an Australian citizen living in Jerusalem and pregnant with her first child. She also had her photograph harvested from Facebook. In 2010 the Israeli Government had stolen McCabe’s identity for a Mossad agent to use in order to assassinate a Hamas official. When the story broke and the passports the Israeli’s had forged were circulated in the media, complete with their actual passport numbers, Nicole McCabe decided she did not want to talk to Australian journalists, or be photographed by them. But after having the door slammed on them by McCabe’s angry husband, the journalists simply sourced photographs of her from Facebook, where friends had posted her wedding photographs. Nicole said she felt:

‘sick, angry, embarrassed and upset … even if Facebook is public, they have no right to take what they want without asking. I was more determined than ever not to let anyone take a photo of me.’ (Media Watch 2010)

 Or consider the fate of the footballer Sonny Bill Williams. In 2007 he embarked on an afternoon drinking session at the Clovelly Hotel with his team-mates and a group of football groupies that included celebrity iron woman Candice Falzon. Later that night one Clovelly local got a message on his phone. The local reported: “It said Candice Falzon had followed Sonny Bill into the toilets upstairs at the pub and everyone knew about it. The next message I got was an … um … action shot.” The shot, taken by putting a mobile phone under the toilet door as William and Falzon had sex, was soon being widely circulated amongst the mobile phones of Clovelly, and when it was eventually published on The Daily Telegraph’s website, it attracted a record number of hits. Williams reportedly had to spend all the following morning buying up copies of newspapers in his area in a futile attempt to stop his girlfriend learning of his toilet tryst. Although the person who took the photograph could have been liable for two years jail under the summary offences act for taking lewd photographs in toilets and change rooms, the newspaper itself could not be successfully prosecuted for posting the photograph once it was taken. (The Daily Telegraph 2007)

Incidents such as this show that faces don’t just have features, they also have velocities. The more famous you are the more recognizable you are to more people, but also the faster your face is circulated in the media. Even if you aren’t famous, a lightning bolt of sudden celebrity can dramatically, thought temporarily, catapult your face into a higher strata of recognizability, which propels exchange at a faster velocity.

While some have felt themselves suddenly swept up into these currents of facial velocity, others have attempted, with mixed success, to ride those turbulent currents to even greater fame. Consider the career of Lara Bingle. Once an ordinary bikini model, her celebrity stocks rose in 2006 when she was chosen for a tourism campaign. The men’s magazine Zoo Weekly then published revealing photographs of her that had been taken eleven months earlier, before she was chosen to be the wholesome face of Australia, on which they superimposed sexually suggestive speech bubbles. She sued the magazine for defamation. She won the case when the judge accepted that the magazine was smutty and had implied that she had willingly consented to pose for the sexual titillation of its readers. (Sydney Morning Herald 2006a, 2006b) However by the end of 2006 the tourism campaign had flopped, and Bingle was having an illicit affair with the married footballer Brendan Fevola. But by 2008 her stocks had risen again, she was engaged to the cricketer Michael Clark, and they were one of Sydney’s foremost celebrity couples, even endorsing an energy drink. By early 2010 she had even signed up with celebrity agent Mark Marxson. But then Woman’s Day published a mobile-phone photograph her ex-lover Brendan Fevola had taken of her in the shower back in 2006, which his football mates had been circulating between their mobile phones for some time. Her engagement with Michael Clark broke down and the energy drink company dropped them. Mark Marxson threatened to ‘strike a blow for women’s rights’ by getting her to sue Fevola, but she did not have a case because, unlike in the Zoo Weekly case, no specific laws of defamation were broken. (Byrne 2010) Bingle’s stocks in the celebrity marketplace plummeted but, after a period of careful career management including charity work, family-friendly television appearances, and the avoidance of footballers, they begun to rise again. They rose so far that by 2012 she successfully negotiated with a TV production company to become the subject of a ‘reality’ TV series Being Lara Bingle on a commercial television network. Conveniently, just before the premiere was about to air, another controversy erupted when she was supposedly photographed surreptitiously by the famous paparazzi Darryn Lyons (who was in fact a business partner of Bingle’s) standing nude near the window of the Bondi flat that had been rented for the show. This confected ‘invasion of privacy’ allowed her to tell breakfast radio that: “There should be a law against someone shooting inside your house …. it’s just not right”, thus garnering pre-publicity for the series, and conveniently forming the content of the first episode. That first TV episode rated highly, however subsequent episodes in the series steadily lost viewers, to the point where Bingle’s career languished once more. (O’Brien 2012) Bingle then climbed back in the celebrity news cycle after she began to date the Avatar actor Sam Worthington, reportedly introducing him to the use of social media platforms such as Instagram. In February 2014 the couple suddenly hit the celebrity gossip headlines when Worthington was arrested in New York for allegedly assaulting a photographer who had allegedly kicked Bingle in the shin. (Clun 2014)

The camera has ruled Lara Bingle’s career as celebrity, someone defined by our desire to look at her. But this has been the case ever since Lillie Langtry. However the roller coaster ride of Bingle’s value as a bankable celebrity has also been ruled by the sudden eruptions or irruptions, whether planned or not, ‘authorised’ or not, of particular recognisable photographs which re-attach the ‘face’ of Bingle to the ‘brand’ of Bingle in different ways. The speed of their circulation through both social media and the mainstream media, create the volatility of the market for her images. Celebrities are sometimes even forced to engage in this market directly. For example, in 2013 the TV and radio presenter Chrissie Swan, who had acquired her celebrity status dispensing homespun wisdom to ordinary women, was photographed smoking whilst she was pregnant, something she herself had campaigned against. So that they could never be published, she engaged in a bidding war with two magazines for the photographs, eventually pulling out after offering $53,000, two thousand dollars less than the winning bid by Womens Day. (news.com.au 2013)

Facial vecotorisation

These examples indicate the high speed of facial velocity. But what of facial vectorisation? The terrain of the face continues to be the site of scientific research that updates Lavater’s and Darwin’s pioneering efforts and re-affirms the face’s muscular mechanics as central to our humanity — although now not by indexing some immutable inner person as Lavater had supposed, but through their intrinsic role within language comprehension. Contemporary cognitive psychologists such as professor Rolf Zwan, from Erasmus University Rotterdam, are researching the ways that facial muscle-movement directly feedbacks to the brain. For example experiments have shown that if you are smiling you can read sentences about emotions quicker than if you are frowning; and if you have had Botox you have more difficulty interpreting photographic portraits of emotions because in conversation your facial muscles subtly enter into a feedback loop of micro-mimicry with your interlocutor, which Botox decouples. (Lingua Franca 2011; White 2011; Zwaan 2013) Other experiments suggest that if you are in the presence of the representation of a face your moral standards are higher. (Bourrat, Baumard, McKay 2011; Smith 2011)

 

While these examples of cognitive research indicate that the face as a concept remains central to discourses of the human, individual faces are also increasingly caught up in ever-finer meshes of delamination, vectorisation, and mobilization. For instance plastic surgery is moving down the social scale from being the prerogative of the famous and the fatuous, to being a commonplace conventional practice for all of us. ‘Extreme makeovers’ are increasingly re-mapping everyday faces, and recalibrating with the scalpel the vectoral angles between eyes, noses and chins in order to ratchet their owners up in scales of beauty.

If the facial structure itself can be morphed through surgery, in other instances the facial pixel maps representing the person can be manipulated. The regular Photoshoping of celebrity portraits in our magazines simply replicates in two dimensions the effects of the cosmetic surgeon’s scalpel, and the amount of pixelated deviation away from the ‘truth’ can even be algorithmically calculated and given a value. (Fahid, Kee 2011) Photoshop can also be used to disguise faces. Consider the case of Christopher Paul Neil who liked to post pictures of himself sexually abusing Vietnamese and Cambodian children on paedophile websites. He applied a swirl filter to his face to disguise his identity, but German police simply applied the same filter in reverse and unswirled the pattern and reveal his face. Interpol then posted the image on their website where he was recognised by five different people and identified. After his face was picked up by a surveillance camera at Bangkok Airport he was eventually arrested in October 2007. (Daily Mail 2007; Wikipedia ‘Christopher Paul Neil’ 2013)

Neil was recognised by a human being, but the technological possibility exists that eventually his face could have been recognised by a machine. Facial recognition software applies algorithms to the same sets of vectors between eyes, nose and mouth that Lavater originally identified. Australia is at the forefront of facial recognition research. We have not only already introduced ‘smart gates’ at our airports to match our facial algorithms with a database, but National ICT Australia (NICTA) received 1.5 million dollars from the Cabinet to research what it describes as the ‘holy grail’ of surveillance: ‘real-time face-in-the-crowd recognition technology’. Concurrent with these Australian research projects, international protocols are also being developed. For instance the US Department of Commerce’s National Institute of Standards and Technology hosted the Face Recognition Grand Challenge open to entrants from industry, universities and research institutes. This means, according to NICTA, that:

The surveillance industry is currently undergoing the same revolutionary changes that shook up the computer industry when internet use took off in the 1990s. Instead of each supplier providing a unique product, the sector will soon be dominated by standards and interoperability. Surveillance will eventually merge into a virtually seamless multimedia network embracing social media, location services, mobile devices, maps, and 3D models. (Advanced Surveillance Project 2013; (Bigdeli, Lovell, Mau, 201abc)

However even though technology is yet to actually deliver on its promises, the idea of facial recognition and facial manipulation has already become commonplace in the media, and almost domesticated. For several years it has been something we can all indulge in as a kind of game. A whole class of smart phone apps are based on face recognition software. We can also apply face recognition algorithms to the vast reservoirs of faces on the internet, or on Facebook, or in our iPhoto libraries, in order to locate friends we are looking for even when the metadata tags aren’t available; or to look for celebrities; or to calculate how much we look like a celebrity; or to calculate which of our children most looks like us. Many new cameras also have face recognition software built in which recognises, automatically focuses on, and tags, particular people even before the shutter is clicked.

In a way of thinking about the face that is very similar to Lavater’s and Darwin’s, the frontier of contemporary 3D computer animation is the mapping of actual micro-muscular movements onto animated wire-frames. The most famous example of this so far has occurred in the movie Avatar, 2009, where actors, including Sam Worthington, wore head-rigs which filmed the movement of motion-tracking markers on their faces. This digital information was then ‘peeled’ off the actor’s face and re-applied to a 3D animation wire-frame model. The use of the same rigs on the actor Andy Serkis for the movie Rise of the Planet of the Apes, 2011, finally placed the human face and its expressions in the realm as animals, as imagined by Lavater 230 years ago. Significantly, this technology has also become domesticated in on-line games such as Macdonald’s website Avartize Yourself. Other games take forensic ‘age progression’ software used by missing-persons bureaus, and turn them into games such as the iPhone app Hourface.

Facial Privatisation

Why is it worthwhile looking so closely at tabloid trash and trivial on-line games? Because they, as much as high-end cutting-edge research, are the symptoms of two new tendencies in the valency of the face. Firstly, we are all becoming celebrities, at least potentially. The velocity of our own faces can suddenly speed up when we least expect it. Secondly, our faces are all part of what NICTA calls a ‘virtually seamless multimedia environment’. This is not just analogical space, the bit-mapping and point-by-point comparison of appearances, but algorithmic space, where faces are vectorised and turned into equations that can instantly interact with a myriad of other equations. The pervasiveness of celebrity culture, combined with the explosion of algorithmic biometrics within merging media and data spaces, has had a profound effect upon the ways in which every one of us regards our own face. The face is congealing as a bastion from which to advance privacy rights and proclaim property rights.

 There has been a consistent and inexorable drift in legal opinion in Australia towards a tort of privacy — which we currently do not have — that is ultimately focussed on protecting the human face. Back in 2001 Justice John Dowd was able to confidently claim that a person ‘does not have a right not to be photographed’. But by 2003 Justice Michael Kirby was commenting that extending the law in Australia to protect the ‘honour, reputation and personal privacy of individuals’ would be consistent with international developments in human rights law. (Nemeth 2012)

 By 2008 Professor David Weisbot, president of the Australian Law Reform Commission, was saying that during their inquiry into privacy law, the ALRC had:

consistently heard strong support for the enactment of a statutory cause of action for serious invasion of privacy. While the debate overseas has focussed on the activities of paparazzi photographers, interestingly, most of the concerns expressed to the ALRC related more to the private sphere than the mainstream media — and to the protection of ordinary citizens rather than celebrities. People are extremely concerned about new technology and the ease with which their private personal images may be captured and disseminated. (Australian Law Reform Commission 2008)

 In their recommendations the ALRC called for: ‘a private cause of action where an individual has suffered a serious invasion of privacy, in circumstances in which the person had a reasonable expectation of privacy’. (2008) And in 2011 the NSW Law Reform Commission agreed, releasing draft laws that stated that an invasion of privacy should exist where a person ‘has a reasonable expectation of privacy’, which could potentially even include a public place. (New South Wales Law Reform Commission 2010; Marr 2009))

So, why this paradox? Why, when our personal information is flowing more freely than ever before, when 80% of people want CCTV cameras in their public spaces, and when the vast majority of Facebook users are happy to use its default settings where there is little or no privacy at all, why are we getting increasingly paranoid about our faces? I think it is because the face is caught up in a wider transformation. It is swimming against the tide that is pulling the private into the public because it is part of a stronger current, from signification to possession. Those of us feeling the effects of both celebrity culture and algorithmic data-media are regarding privacy less as a singular inherent right, and more as a fungible personal commodity which can be exchanged in a market place. For instance Nicole McCabe knew her participation in Facebook was not free, she knew she had ‘sold’ it some of her privacy in order to enjoy its benefits, but suddenly and unexpectedly she came to realize that perhaps she had ‘traded off’ too much of her privacy. This mercantile logic is also beginning to pervade other environments of facial interaction, such as public places. Within the politics of the face the receding sense of the private, in the sense of the ‘the discreet’, is being overtaken by an encroaching sense of the privatised, in the sense of ‘the owned’. We all increasingly agree implicitly with Nussenzweig’s lawyer: ‘why should this guy make money off of your face?’.

The abstraction, delamination and mobilization of the face has led to its reification. The face is closing down on the sense of openly mutual obligation that, in Levinas’s terms, once arose when one face faced another, and is replacing it with a sense of commercial enclosure. This reification is intensified by the way that all faces, even our own, can be peeled away from our bodies to enter new virtual and algorithmic spaces. Celebrities are merely at the vanguard of this transformation. Celebrities believe they are their own commodity. They believe that their face is the result of their labour and their talent. It is their capital, their brand, their corporate logo. The velocity with which their face travels through the neworks of the media is what determines their value as a celebrity. They believe they therefore have a proprietary right in it. In America their faces are even protected by a common law ‘right of publicity’ which grants them, in the words of one key judgement, ‘the exclusive right to control the commercial value and exploitation of [their] name, picture, likeness or personality.’ (Wikipedia, ‘Personality Rights’ 2013) And, just like them, we ordinary people also feel that our own faces are also becoming more monologic, less a window or an interface, and more a logo for ‘Brand Me’. That configuration of eyes, nose and mouth stuck to the front of our heads, which we call the face, is now not so much a portal to the inner self, or a species of physiognomic autobiography, or an interface to our fellow citizens, as much as a rebus of identity, or perhaps a corporate logo for the persona. It is clear that laws of privacy, photography and reproduction will eventually be changed to confirm for everybody what has already happened in facial valency to a select few. They will come to protect not only the integrity of the personal autonomy and public citzenship of the individaul as accessed through the face, but also the value of the face itself — as an individual’s property

 GALLERY OF ILLUSTRATIONS

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Wikipedia 2013, ‘Death of Neda Agha-Soltan’, entry, http://en.wikipedia.org/wiki/Death_of_Neda_Agha-Soltan. Accessed 31 January 2013,

Wikipedia 2013, ‘Personality Rights’, http://en.wikipedia.org/wiki/Personality_rights. Accessed 31 January 2013.

Zwaan, R 2013 Brain & Cognition, Erasmus University Rotterdam, <http://www.brain-cognition.eu/, Accessed 31 January 2013.

Hey France, yes, ban the burka, but free the camera too!

Great to see that the European Court of Human Rights has just upheld France’s 2010 ban on the burka. No doubt the French quoted Emmanuel Levinas from Totality and Infinity: ‘The face opens the primordial discourse whose first word is obligation’ (p201). But despite this enlightened ban, France’s poorly written, post-Diana anti-paparazzi, privacy laws, in particular article 9 of the Civil Code and article 226-1 of the Penal Code, still mean that street photographers are routinely harassed on Parisean streets by people who believe their right of privacy, or their ‘proprietorial ownership’ of their own face, extends into civic space — thus closing down the street as a space to truly ‘live together’. What about some droits for photographes too?

 

Pixelation of People’s Faces

People’s faces are being pixelated more often in newspapers and on TV. It used to be that only the suspects of serious crime had their eyes obscured by the familiar black bar, but now lots of people we see on the news have their faces obscured by a circle of enlarged pixels. Even in Google Map’s new ‘Street View’ application the faces of people on the street are automatically blurred to protect their privacy. Privacy itself has also become an increasingly debated term recently, with more and more people claiming that they have a ‘right to privacy’, even when they are in public. In thinking about these issues I decided to experiment with a picture I had clipped from a newspaper. It was a school class portrait in which the newspaper had decided to pixelate the face of each student. I ‘deconstructed’ the conventional composition of this photograph by scanning small portions of the image, of only a few millimetres across, and then re-arranging them in various kinds of grids. With the original news context of the image stripped away, and each face isolated for comparison, I wondered if the viewer might experience the act of pixelation itself differently. What does it do to its subjects, besides preserving their privacy, does it turn them into criminals or victims?

Bill Henson

Op ed, Canberra Times, 2008

You can call Bill Henson’s photographs many things: melodramatic, perhaps; overwrought, perhaps; repetitive, perhaps (he’s been shooting the same kind of brooding, heavy-lidded adolescents for decades). But one thing you can’t call them is pornographic. Contrary to the claims of the activist, Hetty Johnston, whose single complaint led to the police raid on the Roslyn Oxley 9 Gallery and the subsequent charges, a photograph of a naked teenager is not automatically pornography. And I’ve got news for Kevin Rudd, who finally fully revealed his own narrow-minded prudery by joining in with the baying of the pack, photographs of naked teenagers are not automatically disgusting. If they are not sexually titillating for viewers, as is the case with Henson’s images, and if, as in this work, they are covered in a heavy cloak of metaphorical significance produced by the model’s faraway expressions and the scene’s stygian lighting, they are not pornography they are art. Good enough art to represent Australia at the Venice Biennale, the cultural equivalent of the Olympic Games. Good enough art to pull 65,000 people to the Art Gallery of New South Wales without a single complaint, and good enough art to have been on the high school syllabus for years. Judging by their blog entries the high school students who visited Henson’s many previous exhibitions responded to his work with far more intelligence and thoughtfulness than our politicians.

Commentators such as Clive Hamilton, formerly of the Australia Institute, have recognised this, but have nonetheless accused Henson and his gallery of naivety. In the current cultural climate where corporations are sexualising children of younger and younger ages to sell them clothes or pop music, and where paedophiles are finding more and more images to feed their lusts by trawling the internet, how could Henson not expect there to be a backlash, Hamilton asks. Henson should have known better, he says. But why should artists pre-emptively buckle to pressure groups and media-manufactured witch-hunts? Maybe they have something important to say, which needs to be said. Maybe we should even respect artists and the international reputations they have built up over decades of hard work and hard thinking.

Girls don’t become women, and boys don’t become men, overnight. It is a time of magic, beauty, confusion, and yes, vulnerability. This simple cultural and biological fact has been the subject of art and poetry for millennia. But by now prohibiting the picturing of this period in life, when innocence mixes with knowing, who in fact is being protected? As has been proved time and time again, when things aren’t talked about, celebrated and discussed, that is the time when they become most vulnerable to exploitation. “This photographic exhibition violates the things for which we stand as Australians and indeed as parents”, Brendan Nelson brayed . Speaking as a parent, I refuse to be conscripted into a supposed army of the outraged. “I’d like to see the parents [of the models] well looked into”, demands the self-appointed guardian of our children, Hetty Johnston, “what parent in their right mind would allow their 12- or 13-year-old to strip off and display themselves all over the internet?” Well, if a photographer of Henson’s calibre and integrity approached me as a father, I just might.

Dr Martyn Jolly

Dr Martyn Jolly is Head of Photography and Media Arts at the Australian National University School of Art

Panic and paranoia? The law and photography in Australia

‘Panic and Paranoia: Photography and the Law’, (with Katherine Giles), Photofile 80, 2007, pp22—25.

Martyn Jolly and Katherine Giles

Every day photographers are experiencing the effects of one of the great contemporary paradoxes of the medium. Never before have photographs been so easy to make and distribute, as millions of digital files are created with mobile phones or digital cameras and uploaded onto the web or distributed electronically. Yet never before have individual photographers felt themselves so inhibited in what they can photograph, where they can photograph and the messages they can put into their photographs. Whether these inhibitions are internalised as a vague feeling that certain types of photography may now be ‘inappropriate’, or whether they come directly from people telling them that photography is ‘not allowed here’, they are all underpinned by an ill-defined sense that the law has somehow changed in relation to photography. Photographers’ blogs are tangled with long threads of discussion about what may or may not be allowed, and are bulging with stories of police, security and members of the public stopping them from taking photographs. As the Sydney photographer, Andrew Nemeth, says on his excellent photographers’ rights website: “Photography is not a crime. Many photographers are fed up with being treated as if they were creeps”.[1]

But how much has the law actually changed? And how much else is now under threat in this current climate of panic and paranoia over morality and security?

PRIVACY

In Australia, there is not yet any legal cause of action for a ‘breach of privacy’. Existing privacy laws only refer to the use of personal data by organisations and governments. Nor is the taking of a photograph for the purposes of art, social documentation or as a hobby a commercial use, even if the photograph is later sold. So their subjects are not ‘models’ with the right to ‘release’ their image to the photographer for a particular use. Instead many other laws regulate the area, including: passing-off laws; trespass laws; confidentiality agreements; nuisance and harassment laws; obscenity laws; stalking laws and laws dealing with filming for an indecent purpose.

Denise O’Rourke is currently being sued by two girls under trade practice laws over their portrayal in his documentary Cunnamulla because, they are claiming, he entered into a misleading agreement with them about the subject of the interviews he wanted to do with them. The celebrity model Lara Bingle is using defamation laws to sue the men’s magazine Zoo Weekly for publishing bikini shots of her from earlier on in her career, with the addition of smutty captions.[2] Several men have been charged under offensive behavior laws with using their mobile phones to photograph topless bathers on beaches.

All of these existing laws should be enough to regulate irresponsible photographers, so that the situation in Australia can remain as it currently stands, where, in words of Justice Dowd, “a person … does not have a right not to be photographed”.[3] But nonetheless there is clearly a trend towards a general restriction on the right of photographers to document their world and the people in it. For instance Justice Michael Kirby has argued that extending the law in Australia to protect the ‘honour, reputation and personal privacy of individuals’ would be consistent with international developments in human rights law: “In recent years, stimulated in part by invasions of individual privacy, including by the media, deemed unacceptable to society, several jurisdictions have looked again at the availability under the common law of an actionable wrong of invasion of privacy.”[4]

Since 2002 the technological combination of mobile phone cameras and the internet has become a socially potent combination. This, mixed with publicity about the use of cameras as an integral tool to the sexual assaults on Diane Brimble aboard a cruise ship and a teenager at Werribee,  has led to widespread public concern about photography and pedophilia, pornography, immorality and misogyny. This is having an effect on photographers at large.

In early 2005 the Brisbane Courier Mail found a website with non-pornographic, non-offensive photographs of children playing at Southbank on it, they created an unsubstantiated panic that international child pornography rings had linked to the site. They hadn’t, and ultimately no action was taken. In Victoria, a site with close-ups of schoolboy rowers, which had been linked to by other pornographic sites, was also found.[5] Subsequently, several urban councils attempted, unsuccessfully, to use their municipal powers to stop parents photographing on their sports fields and council beaches. [6] Shortly after, Surf Life Saving Australia called for a complete ban on pictures of its 40,000 young members without the written permission of parents. Although they subsequently backed down, they initially claimed that their young members should be able to “reasonably expect” privacy, even if they were in public areas. Presumably unaware of any irony, they went on to say that they intended to advise their staff to record the appearance, attire and car registration numbers of anybody they spotted breaking this rule.[7]

But the Summary Offences Act 1988 (NSW) already bans photographing a person in a state of undress or engaged in a private act for the purposes of sexual gratification without their consent. Other jurisdictions prohibit taking photographs of private intimate activities in private personal places such as toilets or change rooms. And specific laws to prevent the new lewd uses suggested by camera phones, such as upskirting, are being bought in by various states, which the Standing Committee of Attorneys-General have now agreed to review and regularize. [8]

Of course, taking lewd pictures of people who might reasonably expect to be unobserved is indefensible, but the tenor of the Standing Committee of Attorneys-General’s discussion paper of August 2005, Unauthorised Photographs on the Internet and Ancillary Privacy Issues, implied a wider drift towards a general right for people to control their image, even when they are taken in public and are not offensive. The discussion paper suggested:

Publishing images of a person without their consent removes their freedom to choose how to present themselves to the world. Some may argue that consent is implicit because the activity is in a public place in full view of people. On the other hand, filming results in a permanent record that can be used in many ways. It is natural that where people are aware they are being filmed, they can adjust their behaviour accordingly. If a person has no knowledge they are being filmed they have no way of reducing the intrusion.[9]

In the new environment of hyperdistribution, this argument runs, the lack of control a subject has over the subsequent use of their image has changed the unposed photograph from simply being a candid image, to being an intrusive act. Arguments such as this are a threat to photographers. For instance one of the medium’s most celebrated genres is street photography, which has produced many masterpieces that have illuminated our sense of ourselves as citizens sharing urban space. In Susan Sontag’s words the street photographer is “an armed version of the solitary walker, reconnoitring, stalking, cruising the urban inferno, the voyeuristic stroller who discovers the city as a landscape of voluptuous extremes.” Is this time-honoured romantic alienation about to become criminalized? Possibly. For instance, whilst shooting a couple of bathers sleeping on the sands of Bondi Beach, in implicit homage to his father’s iconic Sunbaker (1937), Rex Dupain suddenly found himself surrounded by four police officers who questioned him for 25 minutes. “Lifeguards and the police are taking the law into their own hands” he complained, “they regard anyone with a camera as a potential pervert. We sit at home and watch close-ups of people lives on disturbing television reality shows but someone taking pictures at the beach is seen as a threat. Our days as a free society are over.” [10]

Police and security guards are not the only ones taking it upon themselves to constrain photographers, irrespective of any law, concerned parents are also getting jittery. In preparing for her exhibition of portraits of her son’s soccer team, Under Twelves, at the Ground Floor gallery in Balmain in late 2005, Ella Dreyfus was scrupulous in making sure all parents knew what she was doing. She showed them a sample of the style of her shots, and all agreed to her project enthusiastically. “Young boys are beautiful; their mothers know this, but does society allow us to acknowledge their beauty?” asked Dreyfus. But a few days before the show some parents apparently got nervous at the prospect of her portraits inadvertently inciting pedophilia, and Dreyfus suddenly found herself requested to withdraw two images from the exhibition, and mark six not for sale.

In September 2006 an amateur photographer called Jodie snapped a young man sitting on the steps at Flinders Street Station. He got up and demanded five dollars from her. When she said she didn’t have five dollars he demanded the film, when she told him it was a digital camera things got ugly, and she finally deleted one photograph in front of him before walking away, with him hurling abuse at her. The other shot she kept and uploaded to Flickr, but with his face blacked out. She asked her friends from the Flickr community: ‘Did I do the wrong thing? Should I have uploaded at all? Should I have left the original photo?’[11]

She had attempted to resolve all these dilemmas by erasing her subject’s face in a half guilty, half defiant, compromise to his supposedly violated ‘right to privacy’, while maintaining her own right to photograph the people with who she shares public space. This botched economic transaction between subject and photographer, and its clumsy resolution as the publication of a faceless figure, follows the rising logic of our contemporary visual culture — the logic of the celebrity image.

The celebrity’s commercial capital is their desirable lifestyle, and their enviable body, all encapsulated in their instantly recognizable face. So it is in their interest to regulate and control the production, interpretation and distribution of their image as closely as possible. There are now at least 30 paparazzi in Sydney, and they are at war with celebrities.[12] The frequent incidents between them, such as paparrazi squirting Heath Ledger with water pistols on the red carpet of the Brokeback Mountain premiere, after he allegedly spat at them during the shooting of Candy, are more than crass paparazzi ‘overstepping the mark’, they are symptoms of a fight for the control of a valuable commodity — the celebrity’s face. As one of the paparazzi succinctly put it, “It’s the price of fame, my son. If we stop taking his picture, his price goes down. This is give-and-take. It’s fame. It’s the name of the game. You give us some of your private life because you earn so much money. That’s the way it works”.[13]

Celebrities are applying pressure for a ‘right of privacy’ in Australia for their own purposes. By invoking such a spurious ‘right’ they hope to garner public sympathy for the control and regulation of the supply of their image, but it is harassment and defamation laws that they actually use against photographers. The most famous altercations are between Jamie Fawcett and Nicole Kidman. In early 2005 Kidman took out an interim restraining order against him, claiming he had harassed her and endangered her life by chasing her across Sydney at high speeds.[14] For her wedding, however, she established a temporary truce with the paparazzi, while preemptively devaluing any of their pictures by distributing an official wedding photograph world-wide a few seconds after the ceremony was over. But this New Year holiday season Fawcett and Kidman were at it again, with Kidman complaining of harassment to the Bateman’s Bay police and leaving the country early after he, and a Channel Ten news crew, followed her convoy to the South Coast.[15]

These days everybody is potentially a celebrity, however briefly, and everybody’s face has, at least potentially, a value. Fantasies of instant celebrity are regularly enacted in reality TV shows, and the world of the celebrity can suddenly open to those who have unexpectedly found themselves heroes in the public eye. For instance, the trapped Beaconsfield miners reportedly discussed who should play themselves in the inevitable movie of their rescue (Russell Crowe and Heath Ledger), and the settlement of their deal with Eddie McGuire was delayed while they were locked in negotiation with mine management and the coroner over who would own the rights to video footage the pair took to aide the rescuers during their confinement.

As a result of the pervasiveness of celebrity culture, if we are photographed in public we instinctively tend to think slightly less like citizens mingling in the town square, and slightly more like celebrities caught out on the town. We now carry our faces into public more as our commodity, something we own, something we have carefully grown, groomed and cultivated, something we can always potentially make money from. Within this logic the face is less an interface, and more a logo, a stamped unchangeable rebus of the self, a trademark always potentially on the verge of infringement.

Although there is no automatic right of privacy in Australia, the controllers of any commercial or government premises can make any rules they like as a condition of entry into their property. As the town square becomes the shopping mall, more and more public space is becoming privatised. Pedestrians are no longer citizens experiencing democratic interactions, but consumers having regulated retail experiences. Shopping centre owners want to keep their malls feeling lively and exciting, but they also know that shoppers want, above all else, to feel comfortable and protected, and this falls to automated surveillance systems and private security guards, who can make any rules they like. While the majority of people welcome blanket CCTV coverage because it makes them feel protected[16], self-expressive photography by ordinary individuals is treated with suspicion because its motivations and destinations are not obvious, and it can’t immediately be recuperated into the shopping experience.

For instance in July this year the Southgate shopping centre in Melbourne erected warning signs featuring a camera crossed out with a bright red slash. In one incident a Chubb security guard stopped the grandmother Val Moss from taking photographs from the public footpath “because”, he said, “of the terrorism overseas”. In response her camera club, the Knox Photographic Society staged a demonstration with over 100 photographers. A spokesperson for the shopping centre said; “There are safety, security, privacy and copyright issues which need to be considered with all photography and filming within the centre, and we reserve the right to ask people to stop filming or photographing if it is deemed inappropriate.” [17] No, no, no and no. Safety is not compromised by raising a camera to your eye, nor will security be breached by hand held snaps. There is no right of privacy in public space, so why should there be a right of privacy in the ‘new’ public space of the mall, and copyright is not infringed by taking photographs that will only include goods on display or advertising signs as incidental parts of a general scene.

The real reason for these kinds of blanket bans is to restrict the behavior of people using the mall. They attempt to focus the possible behaviors of customers to a narrow spectrum around the core function of shopping – buying, look into shop windows, recharging on coffee and cake, and feeling protected. This narrow band of profitable behavior excludes all other non-corporate behavior previously acceptable in public, such as self-expression.

SEDITION

Towards the end of 2005 the Federal Government introduced the Anti-Terrorism Act (No 2) 2005 (Cth) containing new sedition laws. To date the laws have not been used to prevent artists from expressing their views. But they could be, and in other countries they have been. The new laws go beyond the traditional definition of sedition as crime of intending to overthrow the government or interfere with elections. They broaden it so that it is an offence to simply urge violence in the community, urge interference in parliamentary elections, urge overthrow of the Government or Constitution or urge someone to assist the enemy or assist those engage in armed hostilities.

This shift of focus towards urging other people to commit seditious acts comes without a clear definition of what urging actually is. The courts will have to define what urging actually means when a case comes before them. In advice to Peter Garrett MP, Peter Gray SC stated that the term urging may, “cover indirect ‘urging’, by way of analogy, or dramatisation, or imagery, or metaphor, or allegory, or allusion, or any of the myriad devices and techniques available to a creative artist.”[18] The work of many artists would already fit within this definition, and the vague language creates an uncertain environment that questions the very nature of freedom of expression in Australia. Until a case comes before the courts, the practical effect of these laws on photographers remains unknown, but the chilling effect is already clear. The ability of photographers to create art that has a direct political message is at the cornerstone of a democratic society. Can art that mimics or comments on terrorism or questions the decisions of Government really be terrorism or sedition?

In 2005 the Australian Law Reform Commission examined the new laws and released a Discussion Paper and recommendations which explicitly recognised the concerns of the Australian arts community and the potential chilling effect on artists. The problem is that the sedition laws do not create a clear distinction between legitimate dissent, including the expression of dissent through of works of art, and actions which should be of concern to national security. This all adds to a climate of fear where the actions of a photographer in simply taking photographs, of, say, a public building or an industrial landscape, immediately becomes suspicious. The eventual implications of the new sedition laws on the Australian arts community are unclear, but the chilling effect is already upon us, and is flowing on to the wider social environment. When a photographer is stopped from taking photographs in a public place by a police officer or a security guard ‘because of the terrorism overseas’, this not only affects all other photographers, it also affects the way every one of us experiences our public places and shared spaces.

CONCLUSION

We live in a world where more is happening on camera, from everyday trips to the shops to orchestrated sexual assaults, yet more is happening off camera as well, from remote detention facilities to intensive industrial farming practices. However this polarisation of visibility is not really being defined by either the freedom of speech or the right to privacy, but by rules of access made by governments and corporations for their own purposes. In this context we need more photographs taken by thoughtful, curious, inquisitive, dallying, dilettantish photographers, armed with nothing more than an ordinary desire to represent their world, not less. But in order to be an effective mode of public speech photographers need to free themselves from the insidious inhibitions, vaguely wrapped up in concerns about intrusion and sedition, that are currently constraining them every time they lift the camera to their eye.

Martyn Jolly is Head of Photomedia at the Australian National University

Katherine Giles is a solicitor with the Arts Law Centre of Australia

[2] ‘Men’s Magazine Is Smutty: Judge’ The Canberra Times 9 December 2006 p12

[3] R v Sotheren [2001] NSWSC 204 (26 March 2001) paragraph 25 http://wwwaustliieduau/au/cases/nsw/supreme_ct/2001/204html [date accessed?]

[4] The Australian 10 July 2003 pB01

[5] ‘Unauthorised Photographs On The Internet And Ancillary Privacy Issues’ Discussion Paper Standing Committee of Attorneys-General August 2005 paragraphs 7–12

[6] Amanda Hodge ‘Fear Kills Joy Of Watching Children Play’ The Weekend Australian 26–27 February 2005 p8

[7] ‘Surf Body Call For Photo Ban’ Sydney Morning Herald 5 November 2005

[8] ‘Upskirting To Become A Crime’ Sydney Morning Herald 28 July 2006 np

[9] ‘Unauthorised Photographs On The Internet And Ancillary Privacy Issues’ Discussion Paper Standing Committee of Attorneys-General August 2005 paragraph 40

[10] ‘Dupain’s Beach Snaps Draw Police Focus’ DD McNicoll Weekend Australian 9–10 December 2006 p10

[12] ‘Snap Pack’ Dominic Cadden Sun Herald 13 February 2005 p14

[13] Quoted in the Australian Law Reform Commission issues paper number 31 Review of Privacy cited in ‘Shooting Star’ Sydney Morning Herald Good Weekend 1 July 2006 p26

[14] ‘Best starring role goes to the beak in Kidman’s paparazzi drama’ Justin Norrie Sydney Morning Herald 12 February 2005Sydney Morning Herald p13

[15] ‘Nicole cuts her hols short’ The Daily Telegraph 2 January 2007 np

[16] Wells Helene A Allard Troy Wilson Paul Crime and CCTV in Australia: Understanding the Relationship Centre for Applied Psychology and Criminology Bond University Australia (2006)

[17] ‘Picture this — if you’re allowed: city puts photo ban in the frame’ Carmel Egan The Sunday Age 30 July 2006 p3

Nicole and Jamie: Fatal Attraction

ABC Unleashed Blog November 2007

Nicole Kidman and Jamie Fawcett are at it again. Last week she took the stand in a Sydney courtroom to say, in a hushed whisper, that the paparazzo had made her feel ‘really, really, scared’ as he followed her car across Sydney while she was on her way to Greenwich for dinner with her parents. For his part Fawcett complained that while he had been photographing, on behalf of The Daily Telegraph, their first Christmas holidays together at Rosedale on the South Coast, Keith Urban had slowed their car down so Kidman could swear ‘f_ _k off, Jamie Fawcett’ to him from the passenger window.

Both were witnesses in a supreme court defamation hearing at which Fairfax was using the defence of truth against damages being awarded to Fawcett for a Sun Herald gossip column that had called him Sydney’s ‘most disliked freelance photographer’, and a ‘cowboy type’ who had wreaked ‘havoc’ on Kidman’s private life. The fatal attraction between the two is long and complex. Kidman is one of the world’s top celebrities, demanding huge fees for movies whether they are flops or hits, an actress whose fame does not rest so much on her thespian abilities (indeed critics often seem surprised when she turns in a good performance) as on her being constantly in the public eye because of her private life. Jamie Fawcett is merely the most notorious of the thirty or so paparazzi that work the Sydney beat, feeding the insatiable appetite of supermarket magazines for celebrity gossip. As Fawcett says, ‘Most readers of celebrity magazines want to see photographs of celebrities going about their lives, doing ordinary things, doing the shopping, arguing with the kids.’

Kidman took out an interim AVO against Fawcett after the car chase incident and accused him of planting a bugging device outside her home. Later, she attempted to create a temporary truce with Sydney’s photographer pack by sending a slab of beer out to them during her preparations for the Keith Urban wedding. But in April this year, presumably unaware of any contradiction,  parked a 24/7 solar-powered surveillance van of her own outside her Darling Point mansion to photograph anybody who approached, and demand they say their name into a tape recorder. Fawcett, on the other hand, hired a yacht to sail near to where Urban and Kidman were honeymooning in Tahiti to photograph them with an extreme telephoto lens. But these spats are just more skirmishes in on ongoing war between celebs and paps in Sydney. For instance Sydney photographers squirted Heath Ledger with water pistols on the red carpet of the Brokeback Mountain premiere in retaliation for him spitting at them while he was shooting Candy.

If we iris out to this larger war we can see that what is really at stake is not Nicole’s precious privacy but the circulation of her face in the media. A celebrity’s capital is their instantly recognisable face. It is that which tops the designer frock on the red carpet, and that which is imperfectly disguised behind goggle sunglasses as the designer tots are loaded into the Hummer. Like any economic capital the use and distribution of the celebrity face needs to be closely controlled and regulated: it needs to remain scarce so its value remains high, but it also needs to be continually used so that it maintains its currency. This is what both celebrity and paparazzo implicitly understand and why they must be perpetually in conflict. As one paparazzo succinctly put it: ‘It’s the price of fame, my son. If we stop taking his picture, his price goes down. This is give and take, it’s fame. It’s the name of the game. You give us some of your private life because you earn so much money. That’s the way it works.’

Both push against the wall of acceptability from opposite sides. To Fawcett a celebrity should accept the responsibility of being photographed from any public space, since there is no legal right of visual privacy in public spaces for the rest of us. To Kidman, returning to her home town should grant her special ‘time off’ from the Hollywood hurly-burly. Kidman refuses to acknowledge that Sydney is now no longer the quaint home town of mum’s lamb roast, but has been turned by PR agents such as her own Wendy Day into a permanently over-exposed stage for celebrity spectacle, plugged as instantly into the global circulation of celebrity images as Hollywood, London or Paris. Fawcett, who himself has now become a celebrity in his own right, photographed by the AAP snapper Dean Lewins leaving the court room in a grey overcoat, refuses to realize that the toxic contract between celebrity and photography has caused its own blow back, where everybody has become more suspicious of the ulterior motives of men with cameras. All of us, whether celebrity or pleb, now instinctively wonder about what contracts we may be unwittingly entering into when we are photographed in public.

Meanwhile the judge has reserved her decision.

Postscript:

On February 27 the NSW Supreme Court judge Carolyn Simpson ruled in favour of Fairfax. Fawcett was not entitled to any damages, plus he was ordered to pay Fairfax’s legal costs which, when added to his own legal bill, will amount to several hundred thousand dollars. The Judge accepted Fairfax’s argument that the defamatory meanings in the case — including that Fawcett had behaved in such an intrusive and threatening manner that he had scared the actor — were true. In her judgment she said: ‘Ms Kidman was clearly afraid. The evidence amply demonstrates that Mr Fawcett’s conduct was `intrusive’ and `threatening’. ‘He was clearly motivated to obtain such a photograph, and he recognised that his remaining opportunities on that evening were very limited indeed.’ The Justice also found that Fawcett had placed a listening device outside Kidman’s eastern Sydney home in 2005, despite police not having charged him after investigating the incident. Outside court Fawcett said he was very disappointed with the judge’s ruling and was likely to appeal. “It is a massive economic decision for me,” said Fawcett, adding that he was “already hurting financially”.

Although this was a defamation case against a newspaper about derogatory comments made in its gossip column, it is likely to be received as a case where paparazzo versed celebrity and the paparazzo lost. It is likely to be accepted as a case that gives credence to the growing belief that there is some right of ‘privacy’ that protects the face, even in public, and some prima facie intrusiveness to any use of the camera.

Martyn Jolly

Facing the End of Street Photography

‘The End of Street Photography?’, seminar at Monash University, 2006 

Taking photographs on the street is one of the foundational practices of photography. Yet this practice now seems to be under direct attack, or at least undergoing fundamental change. Now photographers’ blogs are filled with stories of them being harassed by security guards, stopped by police and asked for ID, attacked and treated with immediate suspicion. Students have reported to me that security guards have harassed them for the taking images of the outside of office buildings, even though that practice is perfectly legal, and no copyright law covers images of built architecture. A martinet bus driver has confiscated the camera of another student, even though public transport is public space where no right of privacy exists. Another student of a colleague was actually detained for several hours by the police for taking pictures of the Adelaide Law Courts, echoing the experience of the entire Geelong Camera Club which was reported en masse for taking images of an oil refinery.

On one Sydney photographer’s web site its owner, Andrew Nemeth, is moved to say:

“Photography is not a crime. Many photographers are fed up with being treated as if they were creeps”.  JPG Magazine devoted an entire issue to that theme in February: “’Photography is Not a Crime’ is a rallying cry. It’s meant to remind everyone that amateur photographers are the documentarians of real life. We capture our world to help us understand it. We are not a threat.”

I want to tease out some recent events in Australia, the US and the UK and identify seven effects that have led to this state of affairs.

THE MALL EFFECT

Although there is no automatic right of privacy in Australia, the controllers of any coomercial or government premises can make any rules they like as a condition of entry into their premises. And more and more supposedly ‘public’ space in Australia is becoming privatized. The lost ideal of public space is the Athenean Agora, an open civic place in the middle of ancient Athens where Athenean men could interact as individuals, protected by an idea of the inherent value of civil intercourse. But for many critics of contemporary urbanity, such as Richard Sennett, Marshall Berman and Mike Davis, the dominant space of public interaction has gone from civic forum to shopping centre, from the city street to private mall. Pedestrians are no longer citizens but consumers, not experiencing democratic interactions, but having regulated retail experiences.

For instance in July this year the Southgate shopping centre in Melbourne erected warning signs featuring a camera crossed out with a bright red slash. In one incident a Chubb security guard stopped the grandmother Val Moss from taking photographs from the public footpath “because”, he said, “of the terrorism overseas’. In response her camera club, the Knox Photographic Society staged a demonstration with over 100 photographers. A spokesperson for the Mall said; “There are safety, security, privacy and copyright issues which need to be considered with all photography and filming within the centre, and we reserve the right to ask people to stop filming or photographing if it is deemed inappropriate.”  No there aren’t. Safety is not compromised by raising a camera to your eye, nor will security be breached by hand held snaps. There is no right of privacy in public space, so why should there be a right of privacy in the ‘new’ public space of the mall, and copyright is not infringed by taking photographs that will only include goods on display or advertising signs as incidental parts of a general scene.

The real reason for these kinds of blanket bans is to restrict the behavior of people using the mall. They attempt to focus the possible behaviors of customers to a narrow spectrum around the core function of shopping — buying, look into shop windows, recharging on coffee and cake, and feeling protected. This narrow band of profitable behavior excludes all other non-corporate behavior previously acceptable in public, such as mooching, or recording their environment.

THE OSAMA EFFECT

Ironically, of course, those areas in which guards prevent you from taking photographs which otherwise would be perfectly legal, are exactly the same areas which are under constant video surveillance. A generalized fear of terrorism and street crime is the justification for the surveillance cameras which cover our public and private urban spaces. But the effectiveness of this surveillance is highly doubtful, as evidenced earlier this by the investigative reporters for The Chaser. When dressed as Texan Tourists they were able to video on the Harbour Bridge and at Lucus Heights unmolested. When dressed as a pantomime sheik they only lasted three minutes.

THE iPOD EFFECT

One instinctive reaction reaction to this alienation of public space is a movement towards what could be called the ‘iPoding’ of the self whilst out in public. Cars have long been mobile lounge rooms creating a jealously guarded piece of domesticity within which to navigate through an alienating public space. Now headphones are creating an aural chassis around individuals — hard shells of indifference and distraction nobody is allowed to penetrate.

THE DOLLY DUNN EFFECT

When the notorious pedophile Dolly Dunn was finally arrested in 1997, a number of video tapes of young boys at the beach was found in his possession. This led to a general panic amongst the public of pedophiles using photographs to stalk and groom young people. And this panic is now affecting art photographers.

In preparing for her exhibition of portraits of her son’s soccer team, Under Twelves, at the Ground Floor gallery in Balmain in late 2005, Ella Dreyfus was scrupulous in making sure all parents knew what she was doing. She showed them a sample of the style of her shots, and all agreed to her project enthusiastically. “Young boys are beautiful; their mothers know this, but does society allow us to acknowledge their beauty?” asked Dreyfus. But a few days before the show some parents got nervous and accused her of inadvertently inciting pedophilia. Amongst a vaguely expressed fear of her pictures of their children being used by pedophiles, Dreyfus suddenly found that two images were withdrawn from the exhibition, and six were marked not for sale.

The media deliberately provoked other panics. In early 2005 the Brisbane Courier Mail found a website with non-pornographic, non-offensive photographs of children playing at Southbank on it, the created an unsubstantiated panic that international child pornography rings had linked to the site. They hadn’t. Ultimately no action was taken. In Victoria, a site with close-ups of schoolboy rowers, which had been linked to by other pornographic sites, was also found.

Subsequently several urban councils attempted, unsuccessfully, to use their municipal powers to stop parents photographing on their sporting fields and council beaches. Shortly after Surf Life Saving Australia called for a complete ban on pictures of its 40,000 young members, know as nippers. It said: “its young member can ‘reasonably expect’ privacy — even if they are in public areas — which could be violated with new technology such as camera phones. The organization says passers by should only be allowed to take photographs if they have the written permission of parents. It intends to advise its staff to record the appearance, attire and car registration numbers of anybody they spot breaking this rule.” SMH 5-6/11/05 Subsequently they backed down, but still seemed unaware of the irony of ‘recording the appearance, attire and car registration numbers of anybody they spot breaking their rule in order to protect their own supposed privacy.

This paranoia over photographs of children has led to some extreme examples, such as this article extolling the benefits of private schools, which felt compelled to blur the faces on a stock shot of some generic school children used as illustrative, not an editorial image. Why? How could this blurring possibly protect the children photographed, from what? And since the photograph was not being used for a commercial purpose, was not being used to sell any product (other than the benefits of private education) there was no obligation even for the photographer to obtain model releases.

THE MARK LATHAM EFFECT

Recently many Australian photographers have been physically attacked in public, on the spurious grounds that they were ‘invading the privacy’ of somebody. In the lead up to Mark Latham’s resignation as leader of the opposition police had used anti-gang laws to clear photographers from the front of his house. Later Latham smashed a photographer’s camera after he was photographed eating a hamburger with his children. He pleaded guilty to malicious damage and replaced the camera. In 2005 there were two other cases of photographers being assaulted

Currently there is no right of privacy in Australia. Existing privacy laws only refer to the use of personal data by organisations and government. There is noy yet any such crime as the photographic ‘invasion of privacy’. As Justice Dowd said in a 2001 ruling “A person, in our society, does not have a right not to be photographed”. Nor is the taking of a photograph for the purposes of art, documentation or as a hobby a commercial use, even if the photograph is sold, so the subjects are not ‘models’ with a commercial contract with the photographer. Instead many other laws regulate the area, including the passing-off law, the trade practice laws, trespass laws, stalking laws, defamation laws, offensive behavior laws, apprehended violence orders, confidentiality agreements, contractual laws, and entry regulations for commercial or government premises. So the girls who are suing Denise O’Rourke over their portrayal as the town’s under-age sluts are suing him under trade practice laws, because they are claiming, he entered into a prior agreement with them about the subject of the commercial documentary he wanted to make with them.

However specific anti-photography laws are being bought in. The state of NSW bans photographing a person for the purposes of sexual gratification without their consent in a state of undress or engaged in a private act. Other jurisdictions prohibit taking photographs of private intimate activities in private personal places such as toilets or change rooms— where people might reasonably expect to not be observed

Police have also attempted to stop people using mobile phones on public beaches to take pictures of topless bathers. But so far they have only securing a conviction when one of the people they arrested for offensive behavior under the Summary Offences Act caved in and pleaded guilty. Taking photographs of topless bathers is something nationally celebrated photographers like Rennie Ellis had been doing for decades, so it is the surreptitious networking and ditribution capabilities of the mobile phone that the police found so offensive. There have been a slew of new offensive behavior laws that try to more specifically cover ‘inappropriate’ behavior with mobile phones, covering the surreptitious use of mobile phones in change rooms, or for upskirting. Queensland was the first state to introduce these new laws and they have prosecuted ten people, whereas in Victoria stalking laws were used for one prosecution. The state Attorneys-general have now agreed to review their diverse laws. (SMH 29/7/06)

In September this year an amateur photographer called Jodie snapped a young man at Flinders Street Station in a generic homeless-youth style shot. However he decided not to play the role of a powerless homeless person, but an exotic ‘third world’ subject snapped by a ‘first world’ tourist photographer. He came up to her and demanded $5.00. When Jodie said she didn’t have $5 he demanded the film, when she told him it was digital camera he got even more pissed off. Finally she deleted one photograph in front of him and walked away, with him hurling abuse at her. The other shot she kept, and uploaded to Flickr, but with his face blacked out and a short caption wondering if she had done the right thing and asking for help in balancing her right to free expression with his supposed right to privacy. This photograph replicates a classic colonial relationship between rich powerful authoritative photographer looking down at a generic type who must passively bear the gaze, but only now the face is erased, as an after the fact attempt by the photographer to restore some supposedly violated ‘right to privacy’ to her subject.

Many people in Australia think that there should be a general tort of privacy, and this is following a world-wide trend. The most extreme laws are in France, where the law protects anyone from an intrusion into their privacy, or that of their family. In France it is illegal to print a picture of someone without their permission. But this prohibition against publishing seems to be interpreted by many as a prohibition against photography itself. Police are not sympathetic to paparrazi or photographers generally. The pack of photographers chasing Diana would not have found a legal outlet for their photographs in France, and three of them were convicted of taking photographs inside the wrecked car after the crash.

Kate Moss had no legal grounds to stop the publication of surreptitious image of her snorting coke at a recording studio. But in 2004 Naomi Campbell was awarded the princely sum of £3500 from a British newspaper which photographed her leaving Narcotics Anonymous, the money was awarded under new European Human Rights legislation on the grounds that a photograph of somebody attending NA would damage their efforts a self-rehabilitation. So in these limited circumstances at least, when a photograph is taken on the threshold of a site dedicated to self-therapy, private space had now spilled out onto the street.

Australia is not far behind. By 2005 following the few instances of images of children playing at playgrounds being posted on websites, and the proliferation of camera phones, the Standing Committee of Attorneys General to commission a discussion paper Unauthorised Photographs on the Internet and Ancillary Privacy Issues, it included the statement: “publishing images of a person without their consent removes their freedom to choose how they present themselves to the world.”

Justice Michael Kirby has also argued for that extending the law of privacy in Australia would be consistent with international human rights law, he said “any development of the common law in Australia, consistent with [human rights] principles, should provide effective legal protection for the honour, reputation and personal privacy of individuals. … In recent years, stimulated in part by invasions of individual privacy, including by the media, deemed unacceptable to society, several jurisdictions have looked again at the availability under the common law of an actionable wrong of invasion of privacy.” Aust, 10/7/03 B01

Some also predict that the recent capping of defamation payouts to a quarter of a mere million dollars, and the introduction of truth alone as a defence, rather than truth and public interest, will mean, that there will be a push by the rich and powerful towards stricter privacy laws in Australia.

THE NICOLE KIDMAN EFFECT

The celebrity’s commercial capital is their recognizable face, their desirable lifestyle, and their enviable body. So it is in their interest to regulate and control the production, interpretation and distribution of their image as closely as possible. There are now at least 30 paparazzi in Sydney and they are at war with celebrities. In 1993 Tom Cruise and Nicole Kidman unsuccessfully tried to use privacy as a grounds to stop New Idea publishing images of their daughter Isabella. In early 2005 Nicole Kidman took out an interim restraining order against two paparazzi Jamie Fawcett and Ben MacDonald after she claimed they had endangered her life by chasing her across Sydney at high speeds. The restraining orders were lifted after they agreed to not approach her house within 500metres.

Note that privacy was not the issue in this case. The interim AVO against Fawcett and McDonald was because of harassment, not invasion of privacy, in the words of her publicist they had made her feel “threatened, intimidated and unable to leave her home without fearing for her safety.” But when her wedding rolled around a kind of truse had been established. The paparazzi sang happy birthday to her through her intercom, and she sent out a slab of beer. The value of any of their pictures was planned to be pre-emptively devalued by her releasing an official wedding photograph immediately after the ceremony.

Recently Lara Bingle, the body behind the Australian Government’s latest international tourist campaign, claimed the men’s magazine Zoo Weekly had defamed her by implying that she was the sort of girl who would consent to have revealing images of her posing in a bikini published for the sexual gratification of men in the magazine Zoo Weekly, even though she had clearly approved of the original photographs being taken for a photographer’s model folio 11 months before, but before she became the fresh-faced face of Australia overseas.

In all of the above examples of the war between celebrity and paparrazi laws other than privacy laws were used.

THE Nussenzweig EFFECT

There is now a democratization of celebrity culture. Everybody is potentially a celebrity, however briefly. Fantasies of instant celebrity are enacted in reality TV shows. The world of the celebrity has never been more porous, open to those who have accidentally found themselves heroes in the public eye. For instance, the trapped Beaconsfield miners discussed who should play themselves in the inevitable movie after their rescue (Russell Crowe and Heath Ledger). The settlement of their first TV deal with Eddie McGuirre was delayed because they were locked in a fight with mine management over potentially lucrative video footage and photographs the pair took to aide the rescuers during their confinement. The hours of footage and dozens of photos, which could have been worth hundreds of thousands of dollars as part of a media deal, was held on to by the mine’s managers despite repeated requests from the two men.

So the celebrity logic of the face being one’s own private commercial capital has now spread from actual celebrities to all of the rest of us. In 2001 the photographer Philip-Lorca diCorcia set up his camera above a sidewalk in Times Square in New York, as people walked towards his camera and reached an x taped onto the sidewalk 20 feet below it, he stook pictures of them with a strobe light attached to construction scaffolding. Out of the thousand of images he took he selected 17 for an exhibition Heads at Pace McGill Gallery. Number 13 of the 17 he selected was an archetypal old-style European Jew, an image redolent with the weight of European history. The person who diCorcia had shot was Erno Nussenzweig, a fundamentalist Hasidic Jew from a small sect based in New Jersey. He wasn’t aware that his face had been used until almost four years after it was first exhibited, after it’s edition of 10 had completely sold out at US$20,000 to US$30,0000 a print, and until after it had won the Citibank Prize in London. When he did find out, three and a half years later, he sued the photographer and his gallery. He was seeking US$1.6 million damages for two reasons: that his image was being used for advertising or trade purposes without his permission, and that it violated his deeply held religious belief in the second commandment, thou shalt not make graven images. As his lawyer succinctly put the case: “It’s a beautiful picture. But why should this guy make money off of your face?” But as diCorcia is reported to have replied: “if he is as otherworldly as his face makes him out to be, why would he care?”

The defendants, diCorcia and his gallery claimed that the photographs were art, and were therefore protected by the First Amendment, guaranteeing the right to free speech. The judge agreed with the defendants that the photographs were art, even though they were reproducible photographs and not paintings, because they were accepted as art by the art world. Even though they were made for sale, this commercial use which was necessary to prevent the artist starving in his garret, was ancillary to their art value. As art they were protected by the first amendment. In addition although the court accepted that Nussenzweig was distressed by his religious aversion to graven images, the constitutional protection of the right to practice your religion only applies to actions of the state, not those of other free American individuals.

In the end this was a very satisfactory outcome, and clearly the correct one. But it will probably be only the first of many, and it does indicate a disturbing trend. Clearly Nussenzweig was resentful that somebody was making a living off of his face, and he had sympathisers. He had worked hard acquiring such a symbolic face, his Klausenberg Sect had been almost completely wiped out in the holocaust, and he had spent a lifetime in new Jersey as a diamond trader, now the face that he had grown had been removed from him, without his permission. No wonder his Lord had brought down a commandment against graven images. On the other hand, those who had supported the photographer replied that he had voluntarily gone out into a public space, Times Square no less, perhaps the most over-exposed place on earth, where everything was surveilled not only by CCT security cameras, but by out-of-town tourists taking it all in as the sights of the big city. His face was therefore in public, and part of the common wealth of the street. But nonetheless there is still something predatory about diCorcia’s approach to photography: the hidden camera, and the strobe lights erected on scaffolding that automatically fired when the unsuspecting subject passed within 20 feet of his camera, set him up as the ultimate disengaged hunter.

DiCorcia was photographing a melodramatic urban alienation. He was looking for photographs of faces that concealed rather than revealed. As the essay to the show, by Luc Sante stated: “You can take your deepest conflicts aad darkest designs out of the cell of your bedroom and air them on the avenue. Naturally, if you live in the city, many of your readiest thoughts  will just naturally be conflicted and dark. Even if someone catches you in the act — if an old friend, say, spots you before you see him, or if you are somehow included in a crowd shot that makes it onto the TV news — you do not have to feel vulnerable about looking troubled, since that is the uniform nearly all city faces wear when they walk alone. The look of doubt and worry even has its practical aspect; it can double as armour. It says ‘Go away’ and ‘Don’t ask’, and maybe even ‘I’ve got a gun’.”

This armoured face is the familiar twentieth-century face of street photography. The street photographer is someone who, in Susan Sontag’s words, is an “armed version of the solitary walker, reconnoitering, stalking, cruising the urban inferno, the voyeuristic stroller who discovers the city as a landscape of voluptuous extremes.” Their streets were no utopias, street photographers photographed a fragmented, alienating society, certainly. But at least it was a society. Everybody might have been going in different directions, and avoiding each other’s eyes, but at least they were sharing the same street. In Walker Evans’ photographs of commuters on the New York underground in WW2 the commuters are in their own private bubble, certainly, but their reveries are cradled by the public space of the subway.

Recently however, I think you can detect a change in the picturing of the street, to one where fragmentation and isolation, one person divided from another, is emphasized, as in the work of Phillip Lorca diCorcia, Beat Streuli and Trente Parke.

As part of this tendency the face itself is becoming increasingly privatized, just like public space itself. It is now less something we take with us into a space of public interaction in order to shield us from our equals, our fellow citizens; we now carry our faces into public in a similar way that celebrities have habitually taken their faces into public: it is now our commodity, something we own, something we have carefully grown, groomed and cultivated, something we can always potentially make money off of.

It is interesting that so many photographic interventions are happening to images of the face. At the same time as faces are being jealously guarded by their owners, they are also being erased, blurred by scared photographers. The celebrity face is leading the way here. The logic of the celebrity face is less an assemblage of orifices, the ‘white wall/black holes of Deleuze and Guattari, with which to interact with the world, even if that means screening it our, and more like a logo, a stamped unchangeable rebus of the self, a trade mark always potentially on the verge of infringement.

The logic of the media martyr perhaps follows the same logic as the celebrity. The faces of martyrs, such as assassinated politicians or ordinary people suddenly caught up in great events, become abstracted, commodified and deterritorialized. And in the same way each of us is potentially a celebrity, each of us is also potentially a martyr.

CONCLUSION

So we have a series of effects change street photography. In summary they are the:

THE MALL EFFECT
THE OSAMA EFFECT
THE iPOD EFFECT
THE DOLLY DUNN EFFECT
THE MARK LATHAM EFFECT
THE NICOLE KIDMAN EFFECT
THE Nussenzweig EFFECT

This change has happened in a period in Australia’s history when public space is undergoing unprecedented forces for fragmentation. This is a second narrative in the theory of contemporary public space, which parallels the first narrative of corporate enclosure. This parallel narrative sees the ideal public sphere as a mutually agreed space where different types of people — the young and the old, the poor and the rich, the black and the white — can interact directly, mix, mingle and compete, and at least attempt to come to a mutual accommodation with each other. But it sees contemporary public space becoming a place of segregation and division where, for instance, those with cash in their pockets are allowed in, those without are moved on by security guards. In this new city there is no longer any central space which it is agreed will be shared, rather each neighborhood or precincts is assigned a different class, ethnicity and function and quarantined from the other. This gives an appearance of increased order, harmony and control, until one of those divisions is suddenly breached, and neighbors who have remained strangers to each other meet in rage or riot.

Perhaps the closest thing to the Agora in Australia is the beach, and the Cronulla riots are an excellent example of the way that politics is spatial, and power is expressed through control of public space.

More than ever, therefore, street photography has a vital role to play in this context. Photographers should fight for their rights to freedom of expression in public space. They should fight against the seven effects I have identified. I suggest all photographers carry cards in their wallets outlining their rights and the phone number of a pro bono lawyer. And we should take back the streets.

Collateral Damage – Denise Ferris and Martyn Jolly

‘Collateral Damage’ (with Denise Ferris), Art Monthly Australia, July, 2008, pp3—5

Now that the nightmare is finally over for Bill Henson, and the dust is settling, what will be the residual damage to Australian culture?

Photography plays a complex role in our culture, it produces direct evidence of reality, but at the same time it deals in social symbols and metaphors, and creates personal ideals and icons. The attack on Bill Henson cut through this complexity with a syllogism devastating in its fundamentalist simplicity: nakedness is always sexual, and photographers always exploit their subjects, therefore photographs of naked children are always exploitative child pornography. This equation efficiently short-circuited any other mechanisms of representation, or expression, or interpretation that until now were assumed to be intrinsic to photographing models posing for the camera. In her strident way Hetty Johnston from the lobby group Bravehearts put it best. When she heard that the DPP had finally dropped the charges she declared: ‘We are just handing our children on a bloody plate to paedophiles. This is a disgrace for this country, absolutely shameful.’

In this formulation, not only are all photographs of naked children always equivalent to paedophilia itself, but they also condemn the whole society. As the Sydney academic Ruth Barcan pointed out in Nudity a Cultural Anatomy, ‘Images of children and youth function as mirrors to an adult society eager to verify its own moral state. This might help explain why representations of children can be subject to idealization, but also why both the effect of images on youth and the representation of youth in images can become concentrated sites of social unease and regulation.’

Any attempt to resist an over-regulation of photography driven by such social unease is immediately met with the ultimate foreclosing reply: child protection. In supporting the initial raids of his police officers the NSW Police Commissioner Andrew Scipione said, ‘the most important thing here, the thing we cannot lose sight of, is we have to protect our children’. As more police started to raid art museums, rifling through their racks looking for thirty year old art works, Hetty Johnston agreed,  ‘Nobody is above the law, not artists, they just can’t be, children are suffering as a result.’

But how might actual children suffer as a result of Bill Henson’s photographs? Perhaps a paedophile might see one and be so erotically inflamed they may abuse a child. But there is plenty of real child pornography available on the net, and no proof that the mere existence of further images of naked children in artistic scenarios and artistic poses will exacerbate a paedophile’s behaviour. Perhaps a child might see one and become ‘sexualised’ too early in her emotional development. But an image of a normal pubescent child simply standing there is unlikely to provoke body-image confusion in other children, who must also be regularly seeing their own friends’ bodies. Perhaps his models may be traumatised by the experience of posing for him, even if they don’t yet realize it. But no Henson model has yet reported that they found posing for him anything other than enjoyable and creative experience. Or perhaps the ‘innocence’ of a child is ‘exploited’ by Henson making money from it. But child actors have long delighted us with their precocious presence in popular films and TV shows, so why should art be any different.

Whilst the DPP was considering whether or not to charge Henson, other police were spending their time more usefully by using actual child pornography to track down real paedophiles. The images they traced, which were downloaded at least 1500 times to Australia, were quite unlike Henson’s, being images of actual sex-acts. Although police operations like Operation Centurion have established that the circulation of pornographic images is an important part of paedophilic behaviour, no research conducted anywhere has been able to establish any causal links between images of the type produced by Henson and aberrant behaviour.

Nonetheless, we have arrived at a time when the naturalist’s slogan ‘nude ain’t rude’ seems historical and quaint, and when talking about nakedness as being just the way we were born sounds like old-fashioned hippy speak. The British sociologist Frank Furedi has described this as a ‘culture of fear’ where ideas of social change (including how we see ourselves represented) are experienced as risks, not opportunities for new orientations. This exaggerated sense of risk is driven by a powerful ‘cognitive illusion’. As the Harvard cognitive psychologist Steven Pinker has argued, we estimate the probability of an event from how easy it is to recall examples. And examples of abuse are continually made forcefully present to us through the media. The incentive structure of activism and opinion markets adds to this — no one ever attracted followers and donations by announcing that things keep getting better.

Potential risks inevitably lead to potential victims. Every photographic act is now more readily viewable through the prism of victim and abuser, than artist and subject. And so Hetty Johnston is able to claim that, ‘the liberties the art world take … harm the whole cause of child protection.’ Even more authoritative commentators such as Clive Hamilton, the campaigner against ‘corporate paedophilia’, says that Bill Henson and Roslyn Oxley should have known better, and have only themselves to blame. They should have realized that they would suffer collateral damage from a society finally waking up to the fact that it has let its children become sexualised too early. But Henson isn’t the only artist to be sustaining collateral damage. For example in April 2007 Polixeni Papapetrou’s photograph Olympia Wearing Her Grandmother’s Jewels was withdrawn from the Gosford leg of the Australian Centre for Photography’s touring show Changeling: Childhood and the Uncanny after complaints from the public. And in 2005, just prior to the opening of Ella Dreyfus’s exhibition, two of her images of soccer players in her son’s team were withdrawn from display, four were withdrawn from sale, and two remain covered over in the catalogue.

Do these few examples really matter? Why bother with those who think they can definitively tell right from wrong, and who set themselves up as experts who know what’s good for all of us? Because these harmful helpers also wantonly mishandle exactly what adults are entrusted with — the social and cultural future of our young. Their self-indulgent disgust and uncorroborated fantasies of harmful art will have significant long-term effects on the world our children will inherit.

Their world would drop a visual veil over our children until the age of eighteen. The marvellous extended process of a child becoming an adult would take place in the dark. The transition period when children are most vulnerable to exploitation (from somebody they know and trust in 85% of cases) would take place largely unseen and unspoken about. The complexities, doubts, fears and dreams of puberty would be left to the tabloids, the television and the advertisers to articulate with their banal sexual dichotomies and overheated social scenarios. The psychologically supporting network of loving looks and mutual regard we want our children to grow up in would be ripped away. The complexity of children would become publicly invisible — except for the photographs that sell products to them.

Their world sees only two possible contracts between adult and child, either one of parental or pedagogical authority, or one of sexual exploitation. All other contracts based on mutuality, creativity, fun or play, are suspect. The chance these teenagers had, through symbolically representing ‘youth’ for Henson (with mum and dad’s permission and with their own free will) to briefly pretend to be someone different, and collaborate on producing something mysterious and beautiful and powerful, would exist no more. By all accounts Henson’s models down through the years still value the experience, some even hang the resulting photographs on their walls for their own children to admire.

The world of the over-anxious sees no social role for art, or creativity or expression. Hetty Johnston sees Henson’s art in only two lights, it is either to make him money by selling images of children, or for his ‘personal satisfaction’. For her, art seems to be a furtive personal activity closely allied to pornography in any case, and without wider social or cultural benefit. ‘If we keep allowing artists to do whatever their whim allows, whatever they want to do, what’s the next boundary that’s going to be challenged by the likes of Bill Henson’, she demands. In her view, and in the view of her cheer squad in our parliaments and in the media, art is a habit a small section of society has, a personal indulgence rather than part of a larger conversation.

Moral panics rise and fall. Eventually this one, too, will subside. But after it has there will have been a tectonic shift in the attitude of the public and the law to what we can and can’t see, what we can and can’t make. The deadening effect will hang like a pall over all of us.