Peeping Tom

There have already been excellent articles about the antics of contributors to the Facebook page “Women Who Eat on Tubes’, including one by Sophie Wilkinson, one of the women who has been targeted, by the Irish Data Protection lawyer Fergal Crehan, and a surprisingly sympathetic interview in the Telegraph with the page’s progenitor, Tom Burke, in which he insisted he is not a weird deviant. Burke made an unsympathetic and discourteous defence of his activities on Radio 4’s Today programme this morning, claiming that his was an artistic project for the cognoscenti and in any case, that there is not right to privacy in a public place. There has been some measure of privacy in public places at least since Mr Peck won his Human Rights case in 2003, so perhaps Mr Burke hasn’t been keeping up with recent events.

If you haven’t seen the Facebook or Tumblr pages (I understand the Facebook page is gone), they comprised pictures of women eating on the Tube, taken without their consent by men. These women put things in their mouths, know worra mean, eh? The nudge-nudge-wink-wink voyeurism of WWEOT isn’t hard to spot, but I have another point. WWEOT breached the law.

Long standing readers of this blog (and DP anoraks) will know that Data Protection offers an exemption in Section 36 for ‘personal, family and household’ uses of personal data. Private citizens are entitled to take photographs in public places, have CCTV on their houses, keep personal diaries about their neighbours, indeed anything they feel like doing. The DPA is not intended to regulate the ordinary person’s activities. However, the exemption has limits. In 2003, the EU Court of Justice found that a Swedish Citizen, Mrs Lindqvist, who wrote about admittedly trivial details about her fellow churchgoers on a church website, had breached the Swedish equivalent of our Section 32. Mrs Lindqvist’s publication of information on the internet robbed her of the domestic exemption. As I have written before, the UK Information Commissioner has always studiously pretended that the Lindqvist decision didn’t happen, but the UK Courts have on at least one occasion described this position as ‘absurd’.

The effect of Lindqvist – properly implemented – would be significant, and it would have a substantial effect on social media. Any person who wished to publish an image of another person (or other personal data) on the internet would have to comply with the Data Protection Act. They would probably have to use such data fairly, they would need the consent of the individual (or some other condition like legitimate interest), and they would need to respond to subject access requests and Section 10 notices (which prevent processing that causes damage in some circumstances). There’s no question, for those people who want to put images of other people onto the internet, it would be a huge inconvenience. Lindqvist would also drag the Information Commissioner into an endless cycle of domestic disputes.

Two things here: first, the law is the law. The ICO has no serious argument that Lindqvist is not an accurate reflection of European DP law, and should do its job properly. Second, in my opinion, a person should have the right to sit on a tube eating a banana, dance badly in a nightclub, fall asleep on a train or wear red trousers and be posh without their fellow citizens taking their photos and sneering at them online. If you want to put your own data onto the internet, a proper implementation of Lindqvist would not be any hindrance. But if you can explain to me why other people (anyone, female or male) should lose their rights to be left alone because you have a smartphone and you want to use it, feel free to drop me a comment.

And so back to WWEOT. As I understand Lindqvist, Mr Burke as the creator (or – no doubt – curator) of the group lost S36 merely because of the publication, as have all of his contributors. At the very least, he should be doing a Data Protection notification and paying his annual £35 to the Information Commissioner. Of course, this would mean that every Facebook user and blogger that published data about a third party should do the same. Let me be clear, I think they should. However, there is a more concrete reason that WWEOT fails its domestic purposes test. Mr Burke is clear that he sees Women Who Eat on Tubes as an artistic endeavour. So that’s domestic purposes thrown out of the window and bouncing down the road in the rear view mirror. He’s covered by the DPA.

There is another exemption that Burke and his compadres may be able to use. Section 32 of the Data Protection Act allows a fairly broad exemption from much of Data Protection if the data is being processed (i.e. the photographs) for the special purposes – journalism, literature and art. Using Section 32 requires the Data Controller (Mr Burke) to ‘reasonably believe’ that compliance with any of the DP principles is incompatible with the special purposes. It’s possible that Burke might be able to argue that the public interest in the publication of his non-consensual images meant the principles didn’t apply, but I think he should be made to do so.

But by applying the DPA to his images, every woman featured on the site would be and should be able to test his arguments out, and force him to justify the overriding public / artistic interest either to the Information Commissioner (who might run a mile) or the Courts (who would probably make a sensible decision). This should not just be seen as a matter of public debate on whether WWEOT is artistic, or reportage. There is a legal method to test Burke’s assertions that the women could have used – and if an incarnation of WWEOT still exists, still can use.

There is a much wider point to be made about WWEOT and the attitudes that lie behind it that is probably another blog entirely. Nevertheless, the casual intrusion into people’s ordinary daily lives that the internet and smartphones have made possible allows all manner of bullying, stranger-shaming and plain old-fashioned voyeurism. Until we stop looking at what we can do on the internet, and start deciding what we should do, I think clunky tools like the DPA should be employed far more aggressively by the people who find themselves unwillingly in the camera’s lens.