The Brocial Network, a men-only group on Facebook where members share images of their scantily clad women ''friends'', has reignited calls for tougher privacy laws for social media in Australia. But this is not the first time the voyeuristic dissemination of women's pictures has resulted in privacy law-reform debates.
More than a century ago, the operation of men's networks of circulation and exchange in the United States, the antecedents of today's Brocial Network, led to the first declared ''right to privacy'' in the common law world.
The ''vulgar and unauthorised use'' of photographs of women first became an issue when Frances Folsom, a very pretty 21-year-old, married US president Grover Cleveland in 1886 and images of her ''form and features'' began circulating in public and on advertising material.
Soon after, ''A Bill to Protect Ladies'' was introduced to the US House of Representatives to prohibit the circulation of the ''likenesses'' of the wives, daughters, mothers and sisters of American citizens. A newspaper editorial supported the bill as ''a protest against making the privacy of life indecently public'' and held that ''the right to reproduce one's features'' was a personal one.
The invention of photography in the mid-19th century enabled the ''form and features'' of individuals to be captured, reproduced and disseminated on an unprecedented scale. Attractive young women soon found themselves victims of this technology, with images of their faces and bodies circulating without their consent or control. Indeed, the Ladies' Home Journal felt compelled to warn its readers that while the great majority of professional photographers were ''men of honour and responsibility'', women should always know the standing of the man to whom they entrusted their negatives, because once in his possession their male friend had ''the means of causing them great mortification by using it for base purposes''. Such advice would not go astray for young women using social networking sites today.
The Bill to Protect Ladies was the first of many legal attempts to remedy such harms. It did not pass through Congress, but two years later, legal scholars Louis Brandeis and Samuel Warren collaborated on an article that would change history, ''A Right to Privacy'', published in the Harvard Law Review. They argued that the common law must recognise an individual's right to privacy and that this doctrine would remedy the increasing problem of the unauthorised circulation of private portraits.
One of the cases relied upon by the scholars was Manola v Stevens, involving the unauthorised taking and publishing of photographs of the young opera star Marion Manola while she was performing on a Broadway stage in a racy outfit. The case attracted intense public interest. Manola told the press that she didn't want her photograph in costume to become ''common property, circulated from hand to hand, and treasured by every fellow who can raise the price demanded by the photographer for a copy of the picture''.
Like Jade, whose image has been uploaded on the Brocial Network, she didn't want to become a sex object for men's gratification. As Jade said, ''I think it's just perverted and wrong . . . that these photos are being used on a public site where men can just [look at them] whenever they like.''
Young women led the charge for the rights of photographed subjects in the US at the beginning of the 20th century under the banner of ''privacy''. In 1901, Abigail Roberson protested against the use of her ''pretty'' face upon advertisements for flour. May Colyer, a 16-year-old professional high diver, sued National Police Gazette (the equivalent of today's FHM or Zoo magazines) for publishing her bathing-suited figure with a salacious caption.
Catherine Feeney brought a ''privacy'' case against a filmmaker for publicly exhibiting her naked body in a feature film of her caesarean section operation, titled Birth! Pauline Myers claimed Afro-American Magazine breached her privacy by publishing private photographs of her ''touched-up'' to enhance her nudity. It took almost 100 years for photographed subjects to win similar rights in Britain. In Australia, they are yet to do so.
Implicit in these ''privacy'' cases brought by women in the United States was also a ''property'' claim - that women owned private images of their bodies and faces and they had the right to decide how and when they should be used. Australia must begin to seriously consider the law-reform question of how best to protect the private rights of photographed subjects (now even St Kilda footballers might have an interest in the proposals!) One approach is to tackle ''privacy'' law reform, but we could also look more closely at the operation of property law, particularly copyright, that automatically awards rights to an image to the photographer, rather than the individual photographed. Why shouldn't these ''scantily clad'' women be able to assert property rights for the images of themselves that seem to remain so inexhaustibly fascinating?
Jessica Lake is a doctoral student at Melbourne University. Her thesis is titled Privacy and the Pictures.
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