Tag Archives: Privacy

You are probably breaking the law when you film your child performing

Amidst all the current discussion over the threats of facial recognition software and message encryption to personal privacy and online discourse, other more longstanding contractions of our everyday public space continue their creep. Thus the ABC can publish an online article today quoting legal advice that parents should not video their kiddies at school concerts because they are infringing the copyright owners of the popular songs to which the kiddies are dancing. As the Arts Law Centre warns ominously: ‘if the entertainment company that owns the copyright decides that they’re going to crack down on this particular type of infringement, then as a parent you’re potentially at risk’.

This now apparently acceptable notion that even intimate moments of familial sharing are privatised in both senses — personal but also  privately ‘owned’ — so proud parents should now just purchase their cherished memories by buying the offical DVD, casts a grim chill over the valuable role family photography has played in social cohesion for a century — from Kodak moments to Facebook pages.

I agree more and more with the recommendations of the Australian Law Reform Commission, made five years ago and never acted on by our government, that existing specific Fair Dealing copyright exemptions  should be expanded with Fair Use exemptions, including exemptions for ‘non-commercial private use’. Some may see the the calls for expanded ‘fair use’ exemptions as a stalking horse for online distribution platforms exploiting small content producers, but the positive function of personal cameras in social space has also to be taken into account.

#standupstripdown

The hashtag #standupstripdown has been invented to be used by people like Heather Whitten who want to post family photographs with naked children. In the latest of a string of such incidents her image of her naked husband cradling her sick and naked son in a shower has been taken down several times by Facebook following complaints by people disgusted by the potentially paedophilic readings the photograph could carry. The disgusted complainers who are having such a lamentable chilling effect on our visual culture misunderstand both semiotics and paedophilia. Even if it unpleasant to imagine  the occasional paedo using such images for sexual gratification, the psychological effect on our whole society of NOT seeing images of such rich aspects of life, love and bodies is far worse. Others complain that the children in such photographs cannot give their consent and may be shamed or embarrassed when they grow up. But image making and image sharing in our culture cannot be reduced to a infinite series of micro-contracts over ‘self image’ between two quasi-legal parties. Such a legalistic conception of self image as an owned ‘property’ also reduces the complexity and richness of our collective visual culture. I’ve previously written about this so I don’t know why people aren’t taking any notice of me. Perhaps I didn’t think of inventing a hashtag.

Heather Whitten

Heather Whitten

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.