[Gendergap] Upskirt/downblouse categories (was: Re: So this is how Commons works?)

[Daniel and Elizabeth Case]

[Including whole original message]

I wonder whether it would be worth developing a guideline, or just
writing an essay about it on Commons. Trouble is, I know so little
about how the Commons works -- I don't even know how to find their
list of policies.

My thinking is that voyeurism is increasingly becoming a criminal
offence, and an essay about it might help to identify the kinds of
images we should be wary of uploading. For example, in the UK, a
person commits a criminal offence if:

"(a) he records another person (B) doing a private act,

"(b) he does so with the intention that he or a third person will, for
the purpose of obtaining sexual gratification, look at an image of B
doing the act, and

"(c) he knows that B does not consent to his recording the act with
that intention."

http://www.legislation.gov.uk/ukpga/2003/42/section/67

The problem with all of this on Wikimedia is the anonymity factor.
People could say "I am the model and I hereby give consent." I don't
know how we get round that.

Sarah

Especially when the images are scraped off the CC-BY and CC-BY-SA Flickr 
streams.

While many American states have enacted similar statutes, there has been no 
effort to criminalize the distribution of media created through a violation 
of them, which has never quite made sense to me. So on Wikipedia, we are 
also in an ethically gray area.

Along those lines, I direct your attention to:

http://commons.wikimedia.org/wiki/Category:Upskirt and
http://commons.wikimedia.org/wiki/Category:Downblouse

While hardly all of those images are what I feared they might be (most don't 
really seem to depict the unintentional exposure of an unaware subject's 
private parts or underwear from an angle that suggests intentional use for 
that purpose by the photographer), there are some that I strongly doubt were 
taken with the subject's awareness, much less consent (although they don't 
show that much:

http://commons.wikimedia.org/wiki/File:Marcia_Imperator_back.jpg
http://commons.wikimedia.org/wiki/File:Marcia_Imperator_legs.jpg

I also really don't think it's fair to the subject to categorize this 
picture as "upskirt"

http://commons.wikimedia.org/wiki/File:US_Open_2009_4th_round_258.jpg

The greater problem is, what do we do about the potential problem here? I 
think there is a real problem already with Flickr images ... Flickr doesn't 
bother to affirmatively screen submissions for copyright infringement, much 
less whether they were taken or uploaded with the subject's consent even if 
they are unidentifiable. The former problem long ago reached the point where 
we've had to publish a whole page of Flickr users to not reupload from 
(http://commons.wikimedia.org/wiki/Commons:Questionable_Flickr_images#Flickr 
users) Why would we not have such a list of Flickr users who might have 
uploaded nude images without the consent or knowledge of the subject?

And perhaps we ought not to presume a Flickr-sourced nude is ethically OK. 
Perhaps Commons policy ought to require that any image of a nude person or 
parts thereof transferred to Commons from Flickr come with evidence of 
consent to be photographed and allow such a photograph to be distributed 
under a free license. Perhaps any such media uploaded directly to Commons 
ought to require an OTRS-verified permission with such stated on the image 
page.

As it is, some of the images in the categories, even those of clearly 
identifiable people, don't even the {{personality rights}} tag, the little 
legal protection we do try to offer.

Daniel Case