[Foundation-l] Legal requirements for sexual content -- help, please!

[Andreas Kolbe]

Another great post.

You are right: this is a separate issue from the original censorship/content filtering debate, but it is an important issue that the proposed "Sexual content" policy on Commons should address.

Recapping some thoughts around this:

*No image showing an actual living person engaged in sexually explicit conduct should be uploaded (or kept on Commons) without that person's consent. Some people will definitely ''not'' be fine with a former partner or someone they only briefly met uploading images of a sexual encounter. If done without consent, this is analogous to a BLP violation ("Do no harm"). 

*Some sexually explicit images show faces, others do not. It is tempting to say that we should only need OTRS consent for images where a person is identifiable, and that consent does not matter for images where people's genitals are shown from behind, in close-up, or their face is out of shot. 

*However, there are obvious risks in yielding to that temptation. A person whose image was uploaded without their consent will still be harmed if the uploader tells everyone, "Look, I uploaded an image of so-and-so's genitals, and this is the URL".

*Some people may be fine with, or enjoy, having a picture of their genitals uploaded, or a picture of them engaged in sexually explicit conduct, but they may at the same time be reluctant to mail OTRS with their real-life name and e-mail address saying, "The person demonstrating oral sex in that picture is me, and I am fine with that picture being on Commons". 

*So by requiring people to mail their consent to OTRS, we may be reducing the number of valuable sexually explicit images we get, as well as reducing potential harm.

*It is impossible to verify that the person sending the OTRS mail is actually the person shown in the picture. It is apparently not unheard of for people to have lied because they wanted an image to remain on Commons.

*All of this is much less of a problem with professional porn actors. We have some professionals who contribute their images to Commons, and I am beginning to think this is something to be encouraged. 

*Obviously, such material needs vetting for educational value (to avoid Commons being used for self-promotion), but many of the above problems disappear with professionals -- professionals in this field are by definition fine with images of themselves engaged in sexually explicit conduct being publicly available, and are also used to complying with all the relevant record keeping requirements. I've even wondered if we should do an outreach to the industry. 

*This does not just apply to sexually explicit images. It also applies to nudity.

If you have further ideas or input, the topic is currently being discussed here:

http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#Consent_clarification

Andreas

--- On Fri, 14/5/10, David Goodman <dgoodmanny at gmail.com> wrote:

> From: David Goodman <dgoodmanny at gmail.com>
> Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, please!
> To: "Wikimedia Foundation Mailing List" <foundation-l at lists.wikimedia.org>
> Date: Friday, 14 May, 2010, 18:43
> The right to privacy is based 
> explicitly on respecting cultural
> taboos of individuals. Ordinary identifiable people should
> not be
> shown in public doing things they reasonably would not like
> to be seen
> doing, except  when the public need for information is
> great enough to
> overcome this. In WP terms, this is the BLP principle of
> "do no harm"
> and it applies as much to images as it does to articles.
> 
> There are people to whom this does not apply at all, such
> as public
> figures when the matter is relevant to their notability or
> otherwise
> the proper focus of responsible news coverage, and even
> private
> individuals when the matter is sufficiently important--and
> this is the
> same for images as articles, and for all WP content. 
> As with BLP, it
> applies with special force to children and others 
> incapable of giving
> consent or incapable of being aware that their conduct was
> being
> recorded.
> 
> I am not a BLP-expansionist; I  interpret the need for
> information
> fairly liberally, but when that does not apply I have
> always been on
> the strict side of enforcing this with such things as
> internet memes.
> 
> In practice in almost all societies, sexual behavior is
> regarded as
> more private than other things, and it is related to the
> almost
> universal taboo about the display of nude genitals in
> public in
> ordinary situations. Therefore the right to privacy does
> apply with
> special force here.
> 
> I think we have an obligation to  remove or obscure
> the identities for
> nude or sexual images of living people who have not
> explicitly or
> implicitly given their consent, or who are unable to give
> it. I can
> imagine situations where the right to public information
> might
> over-ride this, but they would be exceptional. (The
> hypothetical case
> of a nude congressman in front of the Capitol was mentioned
> somewhere
> in these discussions.)  This is to be judged in terms
> of their
> culture, not ours'; we should deal differently with a beach
> in Sweden
> or in Saudi Arabia.
> 
> But all of this is irrelevant to the original censorship
> issue,
> because we are not protecting our audience, who can
> personally or by
> proxy protect themselves & have the responsibility for
> doing so; we
> are protecting our subjects, who cannot.
> 
> David Goodman, Ph.D, M.L.S.
> http://en.wikipedia.org/wiki/User_talk:DGG
> 
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