Best of the Transparent Hummingbird
I went and had a look at Vanessa Ho’s page and the comment threads so now I’m more or less caught up (I didn’t read all the comments thoroughly).
Are you asking me as a lawyer or as a non-lawyer?
As a lawyer I’ll tell you that this is a complex issue involving not just IP law and freedom of expression and privacy laws (as far as I can see from the comment thread on Vanessa Ho’s page the discussion is revolving around these issues_ but also their interaction with cyber-law and tort law which no one is talking about. And I think the discussion so far is also confused because of sloppy language and confused legal concepts in the discussion: your friend’s freedom to take those photos relates to privacy laws, his freedom to publish (not take) those photos on his FB page relate to his freedom of expression, his freedom to prevent others from reproducing the photos arises from the copyright subsisting , his inability to prevent others from pointing the finger at him is a matter of cyber law, the damage he may or may not have caused his non-consenting subjects, or the damage he might have suffered himself from the public attacks, is a matter of tort law. Everything else they are argung about is a matter of morality and sociology and power.
And come to that I’ve a great deal of sympathy for Vanessa Ho’s viewpoint about the dignity of sex workers. (I actually did not consider that viewpoint until now.) I even agree with her that the taking of those photographs could have been highly insensitive, (but not necessarily exploitative.) I think she is obviously wrong about almost everything else, from white privilege to freedom of expression to consent and certainly her understanding of the law on very many counts. I can see she’s very emotional from the kinds of things she is saying, all of which while meaningful in themselves are being raised in the wrong context over the wrong issue.
Take the legal issues first because that is much easier.. As a street photographer yourself you already know that (in general) you do not need permission to photograph anyone as long as you’re in a public place which you have the right to be in. Written consent/releases are only for commercial purposes — formal protection for your right to privacyin a public space is a very narrow exception.) Most of these people were not in a private dwelling and you’re not using highpowered lens photographing people in their own houses from the next HDB block. Your friend is perfectly within his rights. The fact the subjects are angry about it doesn’t come into it, not under this aspect of privacy.
On the other hand, when you’re in a private place then you would be limited by any rules a property owner imposes on you and you would need permission depending on the situation. Part of the issue I see is that not all of those photos appear to have been taken in what the law would consider a public place (and ‘public place’ has a legal definition — i would have to dig up the case law to tell you what is covered and not covered, but I’m fairly sure a workers’ dormitory (except for the purposes of the alcohol ban) or a personal dwelling would almost certainly not come under the definition of a public place.) Short of knowing exactly what was taken where, what was agreed between subject and photographer and the person who had control of the place at the time and what the circumstances are I don’t think there is any point in commenting further.
As for the women’s right to privacy (consent is not the issue, privacy is), unlike the US and UK, Singapore does not recognise a general right to privacy and the photographed women have no recourse in law (whether it’s for intrusion into their private affairs or for making public an embarrasing private fact.) Vanessa Ho by the way is completely wrong on the law when it comes to harrassment and defamation. It is not harrassment if there is no intention to cause alarm distress or insult through threatening or insulting action. It is obviously not defamation to portray someone as what they in fact are. It’s less clear whether his conduct could fall foul of the new Protection from Harrassment Act under “stalking” (as it is worded, it could potentially include his behaviour) but I think a lawyer could make a strong argument against it, within the meaning of the Act. (Another thought occurs that on the contrary, he might actually be able to sue Vanessa for defamation and succeed(some of the things she’s said is already potentially defamatory.)
Attilio you’ve just asked me a question that takes AGES to answer and i’m trying to write a paper by 5pm tomorrow!
They’re absolutely right that he has freedom of expression. Not under the constitution (unless your friend is a citizen) but he has a common law residual libety subject to any other written law. I don’t see him inciting sedition or racial hatred with his photos. My personal stance on freedom of expression is very simple. Your freedom of expression is subject only to your own moral constraints (if any) that you yourself choose to place on yourself for whatever ethical or personal considerations (and not those which others impose upon you.) The flipside is that you will invite response for expressing what you do and if there is fallout, then suck it up. If your expression harms someone else you may want to reconsider matters (and maybe even retract — but only if you wish and have changed your mind. ) And because rights aside we live with other human beings we live with the social consequences of our choices.That’s all.
As for the alleged copyright infringement by the mothership, I’m really surprised (and i’m sure it’s true if he says he hasn’t given permission) they were not more careful — this ought to be basic legal awareness for anyone who runs a magazine or website. The fact that copyright material is publicly accessible on the internet doesn’t constitute an implied waiver of any reproduction rights for anyone who can access it. It is a clear-cut case of infringement and if I were him and I wanted the articles gone and photos removed addressing this issue directly as a copyright issue would be the simplest and legally least problematic way. (On the other hand I wouldn’t suggest he actually sue if they refuse — yes, there was clear prima facie infringement, but they could possibly avail themselves of some of the fair dealing defences, including the use of copyright material for the purposes of criticism, or review, or reporting of current events — depends on how much material they used and in what manner and for what purpose — even commercial gain by the infringers would not necessarily defeat the defence. You’d want a lot more facts and case law and an IP lawyer to advise you on that.)
But I’m not sure your friend’s responses have been helpful or relevant, at least the ones I can see in the public thread. From what I’ve read he is being way too defensive and far too emotional. I also notice he hasn’t actually engaged anyone on the issues they raised. What did he actually say? 1) That he obtained consent for his other photos. That’s irrelevant. Did you have consent for this photo? Whether he needs consent to begin with is another matter; my point is that you can’t answer an allegation of ‘you didn’t do X’ by saying no but I did that elsewhere. 2) that he has a long history of working with humanitarian organisations and has used his photography to further good causes — again, irrelevant. Does this particular photo cause harm or good? 3) that the photos have been his public FB page for 3 years with no problem and limited attention, and that the unauthorised reproduction of the photos led to all the trouble? I think that analysis is way off. . If you publish it on the internet, and it is publicly accessible, then it is public. (which is not the same as saying you’ve waived your copyright.) Supposing the mothership had written an article about his photography and only included a link in to his album, without carrying any of the photos. Is there any copyright infringement? Absolutely none. The fact that traffic is directed to his page as a result of their article is totally irrelevant — It’s exactly the same if you were to tweet or blog something controversial. Doesn’t matter if no one follows you on twitter or reads your blog or that you did not intend this to reach a wider audience. Someone stumbles on it and it goes viral. No privacy would attach. You put it on the net, you consent implicitly for anyone and everyone to see it. (For that matter, it suddenly occurs to me that had the mothership taken a screenshot of his photo album he would have no copyright remedies against them — you cannot stop someone from taking a photo of your photo.) To me it’s absurd to point fingers at the the people who called attention to the material if the material was placed there by yourself. Frankly, I appreciate that he wanted to document a part of SG that is not unknown but that we don’t like being reminded of. Exploitative? Possible. Depends on what we mean by exploitative. Insensitive. Probably yes. To me a good response would be simply to say: I acknowledge there are some people who are upset or offended, no, I hadn’t considered there might be certain kinds of negative social impact. Having now considered these I still assert my right and everyone else who doesn’t like it suck it up (and I’d admire him for sticking to his guns), or, having reassessed the situation with new facts I see the point and am willing to withdraw them in acknowledgement that they could cause some social harm.
The thing that we’re not talking about and which is getting buried in all this is the workers themselves. The more we linger on whether we agree with Luciano or Vanessa the less we talk about the workers. I think we should all talk less and do more. OK That’s my two cents. I want to get back to my three papers!!!
