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back to article Alleged Peeping Tom claims First Amendment right to upskirt

The Massachusetts Supreme Judicial Court is mulling just whether an alleged upskirter's right to snap women's nether regions is defended by the US constitution, and indeed whether women who unwittingly expose themselves in public have any right to privacy. Michael Robertson, 31, was cuffed back in 2010 for allegedly attempting …

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I'm sure there is a difference between taking pictures of a slipped boob at the Superbowl, and sticking an upward-pointing spycam in your boots or hiding cameras in changing rooms.

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Anonymous Coward

Interesting point of law, that it requires being undressed to validate the crime.

Definitions of offences can be quite complex especially when they have to prove the persons state of mind, such as if dishonesty was involved.

Now if the victims in this case had not been wearing underwear would the offence have been absolute?

Or would the courts decide that if you go on public transport without wearing your knickers more fool you, you bought it on yourself?

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@M Gale

Exactly. They should be able to word a law so that if the photographer had to make a determined effort to get the shot then it's an invasion of privacy (probably get most of the paps with that defintion as well) however if the subject is sitting spread legged on a wall it isn't, or if the wind blows at an inopportune moment then it's an act of god or somesuch.

In all cases you should expect some privacy in changing rooms even if they are comunal.

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"Now if the victims in this case had not been wearing underwear would the offence have been absolute?"

Keep going down that path; if true, then not wearing underwear, regardless of the quantity of other clothing, would be considered Public Nudity.

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Re: @M Gale

Totally agree. This is far too good a compromise to actually make it to statute.

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Anonymous Coward

And public nudity should not be a crime anyway, I am of the opinion that if they wanna be naked, let them be naked...

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Joke

Having had the misfortune of walking around my home town during the height of summer,

I've decided that burqas should be mandatory, for both sexes.

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Megaphone

@Chris W -- Re: @M Gale

...photographer had to make a determined effort to get the shot then it's an invasion of privacy

That's a reasonable proposition and it ought to be so both here and in many other privacy situations as well. Paparazzi who invade the privacy of others by unduly going out of their [normal] way would be another example.

That said, I reckon we'd better get used to it, as they say 'we ain't seen nothin' yet'. In the last few decades cameras have miniaturized I guess between ten and a hundredfold. When they miniaturise even further and we've drone cockroaches or similar equipped with cameras creeping about then what are we going to do? How on earth will that be policed, irrespective of what the law says?

Don't say it won't happen for it clearly will. Technology marching on, the legit surveillance industry etc., etc. will ensure that it does, thus it'd be very foolhardy to assume these micro cameras won't be diverted for such nefarious uses.

Being male and nothing to write home about, I'll never be worried about micro cameras sneaking up on my rather uninteresting body parts, but I sure do worry about other forms of intrusive surveillance to which I'm likely to be exposed.

Miniaturising the camera by another tenfold will effectively end privacy, and I find that concept very worrying.

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Big Brother

Should have wrapped the founding fathers in copper wire....

We could probably power the East Coast with the free electricity right about now :)

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Fucking perv...

How about smacking Michael Robertson in the gob for taking upskirt pix of my partner - is that illegal? I don't care - legal or not, he'd better not get his camera near me or mine. Fucking pervert.

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Anonymous Coward

Re: Fucking perv...

Bit of an extreme reaction here, usually found on redneck websites but at least the spelling is reasonably correct.

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Anonymous Coward

Re: Fucking perv...

Ones man's trash is another man's treasure.

I mean you might be the kind of person who likes to slather jelly all over your partner without eating it.

That to me is a waste of food.

Chill out.

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Anonymous Coward

Re: Fucking perv...

Why stop there? Nothing like a good, old-fashioned lynching for those people doing things we don't like eh?

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Re: Fucking perv...

How is that an extreme reaction? F***ing perv seems appropriate in this instance.

If someone was doing that to me I would also be mightily pissed off. The analogy to other sex games is incorrect. If this was two consenting adults, then so be it. Trying to get random up-skirt shots on trains is not two consenting adults.

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Anonymous Coward

Re: Fucking perv...

So I take it your single ?

You must be or will soon be if you tell your parnter you wouldn't smack a guy for taking upskirt photos of her.

Or may be you have a hole in the toe of your shoe ?

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Mushroom

"Bit of an extreme reaction here"

I can see why you chose to be anonymous. There is nothing extreme about getting angry with someone for committing what is essentially a sexual assault on a loved one.

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Re: "Bit of an extreme reaction here"

It's a photo not a sexual assault, ask any body who has been sexually assaulted if they'd rather had had a photo taken instead.

All the thump the perp brigade sound to be very insecure and the type who would thump someone just for looking at their partner.

Personally, no, I wouldn't get angry, amused more than likely. Would I intervene if I saw it happening? Of course I would but I hardly think physical violence is an appropriate reaction.

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"ask any body who has been sexually assaulted if they'd rather had had a photo taken"

Tell you what, why don't I ask my sister how she felt when some slimy pervert stuck his phone up her skirt and took a photo? Oh, wait, I don't have to - I already know that she was shocked and upset by it. I also know that had I been there, said pervert would have eaten his phone without salt.

You are speaking from a position of ignorance, Chris. Taking an upskirt photo without permission may not be on the same level as groping a woman or pulling off her clothes, and it's certainly nowhere near actual rape, but it's still a violation.

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@Jedit

It's a bit perverted sure, its an invasion of privacy definitely, but sexual assault? No.

I think calling this sexual assault is an insult to anyone who has really been sexually assaulted...

But worth risking jail time by attacking the perv? Not really.

And of course this is another of those gender bias crimes, if a Scotsman had a photo up his kilt taken by a women, I would expect there would be no severe reaction. When I was at school girls would walk into the guys changing rooms and barely look up.

People are immature if they find the human body so shameful they consider an invasive photo the same as sexual assault.

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Anonymous Coward

Re: Fucking perv...

that depends on what you mean by "consent".

it sounds like the argument here is whether someone wearing a skirt has implicitly "consented" to having pictures taken by wearing a something that allows their privates to be viewed - albeit from an uncommon angle.

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@jedit

My wife got groped on the tube, a few years back. She was quick enough in turning round to catch him in the act, foisting upon him the look that she normally reserves for unruly pupils. Much more effective than thumping him one.

Doubt I'd find it so amusing if it'd been anything more serious, mind.

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@Jedit

Congratulations, you have just insulted and belittled every woman who has suffered a real assault, sexual or otherwise, with your pathetic rant. May God help your sister if anyone actually touches her. I suspect in that case you'd need quite a bit of help as well.

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(Written by Reg staff)

mod hat on

Play nicely. Hugs and kisses, El Mod.

Or else.

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Re: @Jedit

It seems we have a disconnect on the meaning of the term "sexual assault."

I believe that Jedit has the definition more correct, focusing on the term 'assault'. What Chris W is referring to assault would be more correctly 'battery'.

Assault (in non-sexual terms) can be as minor as using overly harsh words (Deliberate understatement: overly harsh in this case being an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.). After physical contact is made, the offence may become battery (an intentional unpermitted act causing harmful or offensive contact with the "person" of another.).

So, an up-skirt photo would be sexual assault.

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Sigh.....

Yes, this is the kind of thing we spend our time on these days.....never mind all those other minor "things" going on in the world....Hunger, poverty, environmental disasters both natural and man made....

no..we need to spend time and money discussing whether anyone has the right to be an @zzhole in public by taking up skirt photos.

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Re: Sigh.....

I'm puzzled, in that case why don't you go do something about those minor things instead of moaning on here?

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Re: Sigh.....

Perhaps he is to busy compiling a tertiary report as to whether somebody called somebody else a pleb. He's probably got a team of 20 officers looking into that right now - no time for up-skirt stuff.

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Anonymous Coward

Re: Sigh.....

I wasn't aware that there was a global order in which things should be sorted out.

So Poverty, hunger, sanitation, war seems like a good place to start, we can leave sexual harrasmant of people in countries where these problems have been solved until somalia enters the first world then, I guess?

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WTF?

Re: Sigh.....

So Poverty, hunger, sanitation, war seems like a good place to start, we can leave sexual harrasmant of people in countries where these problems have been solved until somalia enters the first world then, I guess?

Where are these countries where poverty, hunger, sanitation, and war have been solved?

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Re: Sigh.....

Liechtenstein?

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Interesting angle, invoking rights clash. If this is pursued, it will be up to the judge to draw the line since although the photographer has rights, so does the subject. And unless engaged in mundane activity, precedent establishes that art with a human subject (photography is considered art in this case) requires consent on both sides: an artistic subject can request the work not be published.

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"Yes, this is the kind of thing we spend our time on these days.....never mind all those other minor "things" going on in the world....Hunger, poverty, environmental disasters both natural and man made...."

Because most of these are not within the purview of courts. These kinds of things usually require legislatures. Good luck getting legislatures to take the long view.

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Anonymous Coward

Consent on both sides?

Do you realise how many times a day your image is taken and used without consent?

Consent must only be given if the image is used for commercial purposes and only when the person can be identified so basically if you can only see someone's bum up a skirt then they become unidentifiable. From the story above he could even have claimed it wasn't the same girl (unless other photos proved otherwise)

There is a reason you have to sign a photo release form but when your out in public and someone snaps a shot the area becomes cloudy but obviously the generalised idea is that it is wrong so the police make the arrest without even checking they have the right laws to cover it.

The case in the story is interesting though, with mobile phones with cameras now where is the privacy line drawn.

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Re: Consent on both sides?

What would happen if the lady in question had a unique piece of jewelry or tattoo in their nether regions? That would be enough to identify them (at least to anyone else who has seen them naked) so would a release form be necessary?

Surely, though, if something is *inside your clothes* it's private and not a public space?

I'll be interested to see the outcome here, they have the opportunity to really fuck up or to make a very good point....

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Re: Consent on both sides?

Wrong wrong wrong wrong wrong.

Consent doesn't need to be sought or given even if the picture is to be used for commercial purposes.

Some of the most famous photos in history have been used for commercial purposes. Without the permission of the subject.

Burning monk in Vietnam anyone? Plenty of other examples.

If you're walking about in the street, people can take your picture. It's their picture, you have no rights to it.

IF and ONLY IF

You had no expectation to privacy in the first place. (You're out in public remember)

The police get this wrong all the time.

http://www.amateurphotographer.co.uk/photo-news/536087/fish-and-chip-photographer-arrest-unlawful-say-police-chiefs-update-with-police-statement

The police knowing the law...nope not most of the time in this case.

I'd suggest in this case, the women had a reasonable expectation to privacy, she'd covered up her knickers, so unless she goes and does a Marilyn, (again no consent given by Marilyn) then she's covered under the reasonable expectation of privacy side of it.

How many of the rioters in London gave permission for their photos being taken and printed in the paper?

Did any of them sue the papers after?

The only part of this that's slightly cloudy, is that it's possible without touching a lady (I guess) to take their photo up skirt.

If We compare this to men, if a women ripped your trousers off on the tube and then took a picture of you in your pants, would you be happy about it, or feel violated?

Actually, scratch that, if you're Scottish in traditional dress and a women shoved a camera to take a picture of up between your legs, how would you feel?

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Re: Consent on both sides?

@Ian

I sadly have to agree with you here - they need to clarify the laws related to "reasonable expectation of privacy"

After all, the red tops seldom get successfully sued for the pictures taken by paps, and most of those constitute fairly direct invasions of privacy as far as the individuals are concerned.

Today I get the feeling "in public" means "viewable from the neighboring hilltop with a small telescope for a lens and clearly reflected in a shiny metal object outside".

Upskirt photography is fairly offensive, but in many countries it isn't technically illegal.

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Re: Consent on both sides?

@Ian

You're talking about the law in England and Wales.

This is the other Boston (one of them, anyway...) where privacy laws are a bit different.

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Re: Consent on both sides?

different countries, different laws though

As it stands the UK is pretty sensible with its photography laws & invasion of privacy laws, even if the police are not always 100% on it, what is needed is a better understanding of the laws by the public AND a clear compensation scheme for unlawful arrest, police need to be less inclined to arrest someone going about their lawful business, i.e. police need to only arrest someone when they NEED to arrest someone not just for minor things that harm no-one.

Now if I was in a kilt, I think I'd be embarrassed if a girl took a photo up my kilt, but would I report them to the police? no, I would not. But if I had my trousers pulled down I might do, although I suspect the police would tell me to bugger off... and they would be right if it was an isolated incident

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Joke

Re: if a women ripped your trousers off on the tube

Chance'd be a fine thing.

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Re: Consent on both sides?

"Actually, scratch that, if you're Scottish in traditional dress and a women shoved a camera to take a picture of up between your legs, how would you feel?"

This happens a lot in Scotland. I know this because back in the 80's I worked in a photo lab checking prints as they came out of the machine. Amazing how many guys wore kilts to weddings......

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Expectation of privacy?

Is there an expectation of privacy if you're in public?

I'm inclined to agree with the pervert here. He wasn't being covert, using a phone to take the shots. He wasn't going out of his way to get pictures of nudity, he was taking photos of things that were visible should anyone care to look.

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Re: Expectation of privacy?

How the hell is an up-skirt shot a thing that is visible?

Taking a picture of people on the tube. fine

Should something in a normal picture be visible due to the way that someone is sitting, still pervy, but I can see your point.

Trying to go for up-skirt shots does not fall under the above though.

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Anonymous Coward

Re: Expectation of privacy?

Surely the line should be relatively easy to draw? If the image is of a part of the body that the person did not intend to reveal then it's wrong? So if she's wearing a bikini then that's fine, if you're angling your camera to get up her skirt or down her cleavage, it's not?

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Re: Expectation of privacy?

Bear in mind, I am referring to agreeing to his interpretation of the law, not agreeing with the activity. The law needs to protect people, so if his interpretation is correct, the law needs to change.

The thing about angling the camera is full of issues though.

What if its a skirt and they're stood on a raised platform, or on a floor above and you can see? Or what if its a boob shot and you're above them? You start to generate some very odd cases when you start getting that specific. The law is meant to be clear, and 'what the person intended to be visible' is very difficult to enforce in a public setting.

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Re: Expectation of privacy?

I don't agree. Just because you are under a platform does not give you the right to take a photograph up someone's skirt. It is not an unintended consequence, it is a deliberate act. The same for trying to get a shot of someone's cleavage from above.

I don't think this has to be that nuanced. Trying to get take photos up peoples skirts = wrong - how is that hard to understand?

As for what a person intended to be visible, I would say that is very easy:

And I sitting with my skirt hitched up and sitting with my legs apart inviting people to take photos? If not then I would say that a person is not expecting someone to take a photo of their knickers.

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Re: Expectation of privacy?

But what if someone else doesn't want someone to take a picture of something else which with a little 'angling' is visible? But not related to underwear. In public of course.

This is why the court case is needed, to determine these things. The law is somewhat ambiguous on this, and as such a judge needs to clear it up. And as it stands, my reading of the law agrees with the pervert's.

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Re: Expectation of privacy?

OK, seriously scared now by the type of people on this forum...

Being down-voted for saying that you shouldn't take an up-skirt shot just because you are in the lower deck of a train and so are looking upwards, and someone may be in a skirt on the platform.

Which means that someone thinks that is what you should do in that situation. I hope that someone gets help.

As to the different types of pictures.

I don't like having my picture taken full stop, I never have done and probably never will. There is nothing I can do about it except never leave the house.

The same does not apply to taking a photo up my skirt. Ever.

With the exception of stalking someone, taking someone's picture where you have to bend to certain angles around someone else is not creepy. Bending around anything to get a picture of someone underwear is! How hard is that to grasp!

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Re: Expectation of privacy? @Stacy

Its not that it is hard to grasp, I agree an upskirt shot is a violation of privacy, but it is hard to define what is restricted (all laws should start from an 'everything is allowed' and then just restrict acts that harm others)

Take this as an example...

A women is drenched in a sudden summer downpour, everything she is wearing turns see through & clingy... If someone was to take a photo at that point, is that legal or illegal in your view? I can see that being a very beautiful shot depending on the location.

There will always be accidents that expose parts of the body that may not have been intended to be shown, and with the ubiquitous camera phone that moment will get captured, just remember your body is not unique..

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@MrXavia

You could at least ask permission (retrospective, perhaps) after taking your picture of the drenched woman, then delete it if she's not particularly happy about it.

You grubby little herbert.

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Re: Expectation of privacy? @Stacy

@Mr Xavia

I would agree that your situation is a tough one. But that is not what is being discussed here.

What is being discussed here is a person taking up-skirt photos. Not public wet t-shirt (which is still pervy unless you ask for permission), but up-skirt. Deliberately going out of your way to violate someone's person with a camera.

Again, how hard is that to grasp?

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