Nude Photos Case

First published: 11th February 2008

Why are the suspects in the nude photos case being charged with obscenity- related charges? The subjects of the photos are doing nothing evil, merely enjoying intimate, human pleasures. The first criteria that the Obscene Articles Tribunal is supposed to consider is, "the standards of morality, decency and propriety that are generally accepted by reasonable members of the community", well, internet users are members of the community, and investigation of the web logs of HK internet users will, undoubtedly, show that many have been accessing similar images for a long time. Our standards of decency have shifted, can the Law and the Tribunal catch up?

The real offences we should be concentrating on are the theft of private data, and the misuse of personal information. The first is covered under "access to a computer with dishonest intent", the second by the Personal Data Privacy Ordinance. Several of the Data Protection Principles defined in the Ordinance are applicable:

"Principle 3 - Use of personal data This provides that unless the data subject gives consent otherwise personal data should be used for the purposes for which they were collected or a directly related purpose."

Distributing private photos without consent clearly violates this principle. You could also consider that the owner of the computer sent for repair had violated Principle 4:

"Principle 4 - Security of personal data This requires appropriate security measures to be applied to personal data."

It seems entirely reasonable to hold someone who chooses to keep intimate photos responsible for their safety. Other principles can be usefully applied to different "sex photo" cases:

"Principle 1 - Purpose and manner of collection This provides for the lawful and fair collection of personal data and sets out the information a data user must give to a data subject when collecting personal data from that subject."

No secret filming! What about photos kept by former lovers?

"Principle 2 - Accuracy and duration of retention This provides that personal data should be accurate, up-to-date and kept no longer than necessary."

If the original purpose was enjoyment by lovers, then the purpose ended when the relationship ended, and the photos should be destroyed.

Unfortunately, there are currently two problems with applying the Personal Data Privacy Ordinance. Firstly, the Ordinance is largely toothless: the Privacy Commissioner can merely issue an Enforcement Notice, and only non-compliance will result in a penalty - but the damage is done when the data is first released. Secondly, the Ordinance includes a broad exemption for "personal data held for domestic or recreational purposes".

Give the Privacy Commissioner some teeth, update the attitudes of the Obscene Articles Tribunal and perhaps we will have laws that protect the vulnerable without giving the Police an impossible choice between prosecuting the entire (online) world or opening themselves to accusations of discriminatory prosecution.


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