Peter A Clarke

State governments have been enthusiastic about criminalising surreptitious photography of a sexual nature, in response to the questionable practice of upskirting (taking photographs from shoes or ground level of women’s’ underwear) and revenge porn, the posting on-line of naked or intimate photographs by a spurned ex partner. The use of this legislation is reported on in Doctor fined for filming men in shower, where the accused engaged in utterly appalling behaviour in filming men showering in public bathrooms in Brisbane.  The article provides:

A trainee heart surgeon has been busted filming men showering in the public bathrooms at Brisbane’s popular South Bank parklands.

Duy Tran Le, 26, a German national, was fined $800 after pleading guilty in Brisbane Magistrates Court on Saturday to seven counts of recording in breach of privacy.

The court heard Le had been in Australia for a month to celebrate his recent graduation from medical school when he filmed the naked men on Friday.

Le filmed seven men in the space of three hours by holding his iPhone over the wall of the neighbouring cubicle.

None of the men realised they were being filmed but his behaviour drew the attention of South Bank security, who contacted police.

Le was arrested and police found video of the men on his phone.

Acting Magistrate Jason Schubert described his actions as “disgusting”.

“The offences are disgusting offences, involving a serious breach of the privacy of other adult males,” he said.

“I can only assume the offending was for sexual gratification purposes.”

Le’s lawyer Kate MacArthur said her client had been accepted into a cardiology unit in Germany and would fly home on January 12.

“He has a very promising career ahead of him,” she said.

She said her client was ashamed of his actions but asked that a conviction not be recorded against him because it could jeopardise his career and ability to travel.

Mr Schubert fined Le $800 and did not record a conviction.

It is curious that State Governments are distinctly disinterested in giving individuals an enforceable right to privacy in response to such, and other intrusive, behaviour.  Consequently there is reliance on police and prosecutors to commence a prosecution to get some measure of justice. That is inadequate.  Criminal proceedings require a high burden to make out the offence.  That may or may not be relevant.  It depends on the evidence.  Criminal prosecutions are the province of the state.  There can be real problems.  First, the ability, and sometimes willingness, of the police to investigate and decide to charge.  Secondly, the discretion to prosecute is in the hands of the police at the summary jurisdiction level and the public prosecutors in relation to indictable offences. Pressures to resolve mean that deals are done and early pleas may be accompanied by withdrawal of some charges.  Those are matters out of the hands of the victim.

As it stands if someone was to take civil action he or she would need to rely on an equitable claim for breach of private information.  Equity provides an unwieldy means to bring an action.  Other torts such as nuisance and trespass may be available but also have their limitations.

This incongrous state of affairs is all the more strange given that means by which privacy can be breached are growing and becoming cheaper.  It is a chronic failure of policy.