[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