In Gary Shteyngart’s 2010 novel, Super Sad True Love Story, denizens of a near-future New York are plugged into a live-streaming social-media platform that broadcasts users’ thoughts, conversations, and “hotness quotients”—crowdsourced attractiveness ratings. It’s a pretty terrifying prediction of the day when the expectation of privacy (particularly, ever-eroding privacy we enjoy in semi-public spaces) is gone.
Here in the real world, we might already be halfway there.
In the last year or so, a number of Instagram accounts and hashtags have to cropped up, all predicated on the idea that it’s perfectly acceptable to photograph someone without their consent and post their likeness online for public consumption. “Hot Dudes Reading,” which seems to consist primarily of off-duty male models reading Kafka on New York’s subways, comes to mind. #LiterarySwag is similar, though it is unisex, and focuses more on its subjects’ fashion sense.
In both cases, having your photo published to Instagram is presumed to be a compliment, both by society and by the photographers themselves. Though, admittedly, in the case of “Hot Dudes Reading,” there’s some satisfaction to be had in the unapologetic and very public objectification of men. How long have women had to deal with similar behavior? And in far grosser, more invasive forms?
Nevertheless, the underlying creep factor is strong. Imagine navigating to your favorite website only to discover some trendy Instagram account had published your picture without your knowledge? It has to be a feeling of incredible violation—knowing that thousands, if not millions (depending on the site) of internet users are considering your face, ogling your physique, judging your clothing choices. One man’s compliment is another man’s freaky head trip.
Oddly enough, while the practice may be invasive to some it is also totally and completely legal. “If you’re in public, you have no reasonable expectation of privacy,” said Mickey H. Osterreicher, general counsel for the National Press Photographers’ Association, in a 2012 interview with The New York Times’s Lens blog. “That’s the difference between what is public and what is private. It’s the reason that all those security cameras that are on every city street are allowed to photograph us, because when we’re out in public we have no reasonable expectation of privacy.”
“If I take a picture of someone on the street they don’t really have a right to tell me that I can’t take their picture,” he added. “They can ask nicely, ‘Hey, would you mind not taking my picture?’ But they can’t enforce it, because there isn’t a law.” The only time photographers get into trouble is when those images are used, without the subject’s consent, in an advertisement; or in a potentially libelous manner—a “story about obese people or smoking in America,” Osterreicher explained.
So, the issue of Instagramming someone without their consent is more about ethics than legality. You may technically have the right to photograph someone on the subway and publish the image without their knowledge, but is it right? Regardless of how infrequently it may occur, we should not have to forfeit the right to decide where and when our faces appear each time we leave our homes.
True, the issue isn’t always black and white. For example, we can thank image-based social media, including Tumblr, for bringing mainstream awareness to “manspreading”—the exercise of spatial male-privilege prevalent on public transit. But most of the photos used to criticize manspreading don’t include the perpetrator’s face. They’re also presumably intended to spur broader social change, not shame any one individual.
Ultimately, shopping at Walmart or riding the subway is not the same as walking the red carpet, or taking the stage in front of a packed arena. Both are public acts, but they necessitate distinctive expectations of privacy and semi-privacy. Even when the intent is to compliment, it’s our right to decide where, when, and how our likenesses become accessible to the masses. Holding fast to that ideal, even in the face of rapid technological development, is not an “unreasonable expectation.” Why let the internet render it so?
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