Poor old Claire Rowlands felt “angry, disgusted and upset” after stumbling across a photo of her three-year-old kid Louis on Google’s Street View tool—thanks to her child’s bottom being served up to (possibly depraved) people on the internet.
Fortunately, Google pixelated–but did not take down–this image.
Gizmodo poses an interesting question:
Google has now pixellated the bottom after seeing Claire’s angry face, but it still makes us wonder… is a grainy photo on the internet more or less safe than having your child running about in full public view without any clothes on?
I addressed this question in Omniveillance. Is there a difference between showing something to a small group of people–a group you can ascertain–and recording that act so that will be disseminated throughout the world. I think that there is a difference. And what if a person does not consent to that recording? Even bigger difference.
While a person is comfortable doing something in front of a tiny fraction of the public, they may not be comfortable doing so in front of the entire Internet. People do not suspect that they are being monitored. That is the lure and danger of omniveillance-like technologies like Street View. This pervasive recording, when people do not even know they are being recorded, brings a new privacy rights dynamic to the fore.
As I wrote:
Third, there is a difference between volunteering to be seen in public and volunteering to be recorded in public.384 As Justice Carter observed in Gill, there is a distinction between what is viewable in public and what is viewable by reproduction, as what the photographed couple chose to do “in view of a tiny fraction of the public, does not mean that they consented to observation by the millions or readers of the defendant’s magazine.”385 A “person does not automatically make public everything he does in a public place.”386 It is not enough to engage in any conduct and assume some risk. Rather, in order to qualify as assumption of the risk for negligence under the Restatement of Torts,387 the plaintiff must assume the particular risk at issue.388 In the case of omniveillance, when a person simply goes outside, they are assuming the risk that someone will see them. However, unaware that a secret surveillance apparatus is lurking, such a person does not assume that particular risk of being recorded.According to the Restatement (Second) of Torts, assumption of risk specifically requires a knowledge element that necessitates that the plaintiff “must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character, and extent which make it unreasonable.”389 This standard thus does not apply in the context of omniveillance.Although a celebrity walking down Rodeo Drive in Beverly Hills followed by a throng of paparazzi can be said to have assumed the risk of being recorded, the same cannot be said when an average person is surreptitiously photographed by an unmarked vehicle or a hidden camera on a rooftop. Ubiquitous and omnipresent surveillance essentially prevents people from avoiding this spotlight. While it may be possible to escape traditional news media, and give a simple “no comment” response to an inquisitive reporter, when a person is being recorded without their knowledge, an abstention from the media becomes an impossible feat. And, contrary to Andy Warhol’s time, when finding an old story involved digging through a dusty library or scanning through microfiche, the fame that omniveillance creates will last much longer than fifteen minutes. Rather, these images are stored in perpetuity on the Internet for anyone to find.In the case of omniveillance, the people who are photographed did little more than walk outside or open their curtains. They are not involved in a newsworthy event that they voluntarily or involuntarily became a part of. In addition, there is no easy way to determine if one is even photographed, as there are no warnings displayed during the recording. Under these circumstances, it is difficult to interact in society without a reasonable apprehension that omniveillance will capture your image for eternity. Because people are not able to avoid this recording, it is wrong to treatthem in the same vein as people who are thrust into the limelight because of something that happened to them.Strictly applying the Restatement’s approach, the only way to avoid assuming the risk is to lock your door, shut your curtains, and live a concealed life within your own property.390 In the context of omniveillance, society is presented with a Hobson’s choice. People can either live a hermetic life beyond the eye of omniveillance, or live a life in public and have no privacy at all. Recognizing the value of privacy and how it promotes free speech and expression,391 this outcome is quite undesirable, and should not be promoted. Therefore, because most of the people who are photographed by omniveillance cannot assume the risk, their notoriety is not voluntary, and the third prong of the newsworthiness exception to the right to your digital identity will not be met.