Lawmakers, heartbreakers and mucky pic takers

As a libertarian who is unable to maintain an erection unless I think my partner is either, a) currently in emotional distress or, b) likely to be at some point in the future, all this talk about “revenge porn” has got me all hot and bothered. By which I mean that not only has it left me nursing a semi, but – as a ban would be thoroughly illiberal – it’s really annoyed me as well.

(That kinky stuff isn’t actually true, reader. But if you’re an attractive young woman with low self-esteem and you were thinking about sending me a photo of yourself topless and crying, you’re more than welcome to, I suppose.)

“Revenge porn”, then – what the dilly, yo? Intimate pictures taken by young lovers are, upon an acrimonious break up, made public, so that non-lovers can enjoy them too. A great deal of embarrassment ensues. All very unpleasant, I’m sure you’ll agree.


It’s obviously distasteful, horribly sleazy, possibly immoral, certainly petty, – but criminal? Unless those primitive tribes whose members refuse to have their picture taken because it would steal a part of their souls are right after all, no. This really shouldn’t need to be said, but being “in” a photo does not grant you property rights in it.

So far, so obvious. But consider this: no one ever claims to have a veto power over the distribution of photos they are “in” unless those photos are risqué, dirty, lewd. Think of those embarrassing snaps you’d rather no one saw. Bad haircuts, fashion faux pas, or questionable facial hair are nowhere taken to be grounds for ownership. But why not? There’s no logical reason to draw a distinction between sexual and non-sexual pictures that cause embarrassment.

Now consider sharing. If it’s legitimate for a lady to show her mates the intimate pictures her fella sent her (for purposes of, I don’t know, comparison or whatnot), it must be legitimate for her to show them to a larger audience via the internet. It’s the same thing, only on a larger scale, and scale doesn’t affect the underlying principle. Hence, if the latter is not legitimate neither is the former, and non-internet-based sharing of photos that might cause embarassment must be outlawed too.

Given that there is no genuine distinction between “dirty” and “clean” pictures when it comes to causing distress, and given that absolutely anything can cause (or be claimed to cause) distress to someone, we are led to the inescapable conclusion that if “revenge porn” ought to be illegal, all sharing of all photographs ought to be illegal, too.

And why stop there? What’s so special about pictures, after all?

For a related post on the “right to privacy”, see “Adam, Eve and a very private cave”

For a related – and, be warned, absolutely filthy – post on the government vs “porn culture”, see Not safe for home

  17 comments for “Lawmakers, heartbreakers and mucky pic takers

  1. Julie near Chicago
    Jul 5, 2014 at 11:49 pm

    Issue of trust. Not addressing the legal angle at all, but a society (including a society of two persons) cannot hold together unless there is trust among the members. Whence social “rules” or conventions or customs are necessary, so that members trust one another not to act outside bounds that are tacitly, if not explicitly, known.

    Actually many people are so embarrassed by many photos of their “unattractive” or “ugly” selves that they may ask their intimates or those who took the photos not to show them around.

    So certain social norms have developed around the showing (and the taking) of photos of other people. The parents and grandparents, and sometimes aunts, uncles, cousins, “greats” of various sorts, all feel comfy showing their “bragging rights” and family photos. A proper subset of these don’t mind having the shots including them shown around at family gatherings and the like. But some, I think rightly, are a little uneasy that grandma (who loves them dearly, no question) will go willy-nilly showing the photo of the toothsome 24-year-old Wendy to the nice man in the supermarket. (A little exaggeration to make a point. Still, come to think of it, I myself wouldn’t do that. Common sense dictates against it. No, not so exagerrated after all.)

    Also, of course, it brings up the issue of privacy. Is this a legitimate “natural” right (in the properly-libertarian sense)? Which is related to the issue of defamation. Libertarians often claim that to damage a business’s reputation is not an “act of aggression against person or property” since reputation is not properly considered property.

    None of which is to indicate sympathy for people who get mixed up with people who would post intimate photos on the internet. Although all of us are young and foolish sometimes, and in many cases right on into Old Age. But then it amazes me the number of idiots who broadcast their entire lives to the last breaking-of-wind all over the Net. I imagine the aliens who inhabit the system of Alpha Centauri are laughing their heads off at us, having long-since left such babyish behavior behind in the dust of their own past.

    Anyway, it’s been real, but I gotta run (to the supermarket!). Rocco, a good piece, I’ll have to try and gather what wits I have left regarding the Right of Privacy. Meanwhile, I’d be happy to send you my photo if you’d like, though it would not be of someone young and attractive (although still with a cute grin I think), still less topless (wearing something along the lines of a brown tent in fact), you should thank your lucky stars. :>)

    • Jul 6, 2014 at 10:13 am

      Thank you for the comment, Julie. I agree with you on the social norm stuff. On the “right to privacy” there’s a link to a piece of mine at the bottom.

  2. Jul 6, 2014 at 10:15 am

    In many of these instances, there will have been an implicit contract that the intimate photos were and were remain confidential, so broadcasting them is a breach of contract.

    • Jul 6, 2014 at 11:18 am

      Sort of like a “gentlemen’s agreement”?

      • Jul 6, 2014 at 11:34 am

        I take this back. It’d be nothing like a “gentlemen’s agreement”, it’d be far, far inferior to one. A “gentlemen’s agreement” is explicit. A one-sided expectation is worthless.

  3. Jul 6, 2014 at 12:00 pm


    is there a difference between (A) an intimate photograph taken secretly without the knowledge (and thus consent) of the person photographed and (B) an intimate photograph consented to (most likely on the basis of an agreement, implicit or explicit, that the photograph would be kept confidential)?

  4. Jul 6, 2014 at 1:46 pm

    I’d have to see them first.

    • Jul 6, 2014 at 2:08 pm

      Are you dodging the question, I wonder? How about this:

      Person A drills a hole in a toilet wall, conceals himself and uses the hole to secretly photograph the genitals of person B. Let us suppose that the toilet is located on property belonging to Person A, and that Person B is a guest.

      In your view, has Person A committed any kind of violation of the rights or property of Person B? If Person B becomes aware of Person A’s activity, takes the camera and deletes the photograph, has Person B committed a violation of Person A’s property? Or if Person B takes but does not destroy the photograph, should B be impelled by force to return it to Person A?

      • Jul 6, 2014 at 2:39 pm

        Richard, if you weren’t a recognised libertarian I’d suspect you were trying to trap me with these questions of yours. (Someone – not a libertarian like you – once accused me of advocating stalking for denying that there’s a right to privacy, for instance.) But I must admit, I’m unsure what the purpose, let alone relevance, of this stuff about holes in toilet walls is.

        • Jul 6, 2014 at 4:06 pm

          The purpose is to explore the issue as to whether “revenge porn” violates a contract, in which case the victim has a claim against the perpetrator.

          If I went to see a doctor about a rash on my balls, and the doctor writes an article about my scrotum without my permission, I would say he had violated the contract between us, which requires confidentiality. In the same way, the photos used in ‘revenge porn’ may have been obtained with the same confidentiality implied. Also, with regard to the toilet, I was interested in whether you thought there was a distinction between photos taken secretly and those which were taken with some kind of consent.

          You may disagree with any such reasoning, and may reject the notion of ‘implicit contracts’. I could, in order to prove my libertarian bone fides, chase down a quote from Walter Block in support of implicit contracts, who is far more of a ‘recognised libertarian’ than myself. If you do not wish to answer any questions from me, for fear of being trapped in a contradiction or a weakness in your thesis, that is your prerogative, and I shall leave you in peace.

          • Jul 6, 2014 at 4:35 pm

            Right, got you! I was just confused because when I mentioned the two of us having a bet on the football, you said it wouldn’t (shouldn’t?) be legally enforceable. But here you are saying that implicit consent to an action is legally enforceable.

            Interesting that you mention Walter Block, by the way. In Defending the Undefendable 2 he has a chapter devoted to Peeping Toms (defending them, naturally!). I haven’t read it yet, so I’m not sure whether what he says there could be of use here.

            Anyhow, the answers to your toilet questions are: no, yes, yes.

            • Jul 6, 2014 at 6:33 pm

              The comment regarding paying up on a bet was that I believe that the courts see them as “gentlemen’s agreements”, which are not enforceable by law. I wasn’t commenting on whether this was a good or bad thing.

              However, I think you are wrong with regard to the toilet situation, but it is tangental to the argument and I shall not pursue it here.

            • Jul 6, 2014 at 6:54 pm

              Neat! 🙂

  5. Jul 6, 2014 at 7:12 pm

    I am not, by the way, disagreeing with your view that ‘revenge porn’ should not be criminalised. Rather, my position is that it seems to me a breach of contract (a civil matter), as it is making public information which was obtained on the basis of it being treated as confidential.

  6. Jul 6, 2014 at 7:44 pm

    You’ve put a questionable introduction in front of some very interesting points about ownership.

    • Jul 6, 2014 at 8:39 pm

      Thank you, Simon.

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