Social media 'creep' accounts flourish at the murky intersection of privacy rights and free speech

Even some of the strongest defenders of freedom of expression wonder if laws surrounding public photography need to be reworked, in light of new technology and changing behaviour on social media.

Should laws surrounding public photography be changed in light of changing technology?

Photography of people in public places can cross into criminality when it's taken in a situation where there is a reasonable expectation of privacy and the recording is done for a sexual purpose. (Adam Radosavljevic/Shutterstock)

Calgary police arrested a man this week in connection with the "CanadaCreep" Twitter account, which had amassed nearly 17,000 followers over the past year by posting hundreds of secretly recorded photographs and videos of women that focused on their breasts, buttocks and groins.

But the charges against Jeffrey Williamson relate to just three of those videos, in which the camera operator follows women walking in public places until there is an opportunity to stick the camera below their skirts and point it upward.

Taking "upskirt" videos like this is prosecutable under Canada's voyeurism laws, but police said most of the material posted to the "CanadaCreep" account doesn't rise to the level of criminality, despite being "extremely disturbing."

That's because we have the right to take photographs in public places in Canada — a long-standing, fundamental component of our country's commitment to free speech and a free press.

But even some of the strongest defenders of that right wonder if the Criminal Code needs reworking in this area, in light of new technology and changing behaviour on social media.

"We are very much in favour of freedom of expression, but there's a point at which it becomes not in the public interest," said Peter Jacobsen, a media lawyer who sits on the board of directors of Canadian Journalists for Free Expression.

Since 1981, the organization has devoted itself "to defend and protect the right to free expression in Canada and around the world."

But Jacobsen does not believe that mandate extends to the "prurient" practice of taking sexualized photos of unsuspecting strangers' bodies and posting them on the internet by the hundreds.

"Making public those things which happen in the public realm is very important," he said.

"But there's a point at which we have to say, wait a minute, we're doing way more harm than good."

Countless 'creep' accounts

Twitter suspended the "CanadaCreep" account this week, but there are countless others like it that remain active, many of them operating within the bounds of Canadian law.

Similar material — targeting mostly women but also men, in some cases — can be readily found on other social media platforms such as Instagram and elsewhere online.

That's troubling to Ann Cavoukian, who served as Ontario's privacy commission for nearly 20 years and now is executive director of the Privacy and Big Data Institute at Ryerson University.

"I don't think there's a legal remedy at this point … but it is such an intrusion in terms of privacy," she said.

"Privacy is all about personal control over your personal information, your facial image, your physical image, et cetera — and obviously this is stripping the individual of all control."

What defines creepy vs. criminal?

To qualify as voyeurism under the Criminal Code, non-nude images that are recorded surreptitiously must meet two legal tests:

  1. They must be taken in a situation where there is a "reasonable expectation of privacy."
  2. The recording must be "done for a sexual purpose."

Calgary police believe several videos posted to the "CanadaCreep" account meet those tests.

The videos depict women being followed — sometimes over a period of several minutes — until they walk up stairs, or get on an escalator or some other chance arises for the camera operator to put the camera low to the ground and film up the women's skirts.

Jeffrey Williamson, 42, was arrested in connection with the 'CanadaCreep' Twitter account that posted hundreds of images of women in Calgary including this one of Alexandra Constantinidis, who agreed to have this screenshot published. The video of her was not among those that led to criminal charges against Williamson. (Left: Facebook, Right: Twitter/Screenshot)

Staff Sgt. Cory Dayley said that police consider body parts hidden "underneath a layer of clothing would be considered an expectation of privacy."

He said it's bothersome to police that there's little they can do with respect to the hundreds of other images posted on the same account — most of which focus on women's clothed breasts, buttocks and genital areas, accompanied by lewd comments.

"It's still objectification of women … which is wrong," he said.

Laws changing in other countries

Other jurisdictions are taking steps to expand the ability for law enforcement to deal with this type of behaviour.

"We see around the world that, as social media evolves, the laws have to keep up," said Kelly Sundberg, an associate professor in justice and policy studies at Calgary's Mount Royal University.

"Australia, Germany and other countries have significantly changed their laws."

In Canada, the federal government has been reviewing laws around cyberbullying, and several provinces — including Alberta — have adopted their own laws with respect to the non-consensual distribution of "intimate images," creating new opportunities for victims to pursue matters in civil court.

The phrase "intimate images," however, typically refers to photos taken by intimate partners and released publicly as "revenge porn," and it's unclear how new provincial laws might apply to photos taken in public.

For Cavoukian, the solutions likely lie in rethinking the way we treat personal privacy and ownership of data in a fundamental way.

"The Germans have a wonderful term for this … called 'informational self-determination' — that it should be the individual who determines the fate of his or her personal information, either in terms of personal data or images," she said.

"So somehow, that's got to be reflected in our laws, as they advance."

Preserving legitimate photography

As one of the women whose image ended up on the "CanadaCreep" account, Alanna de Boer believes something should change.

She was shocked when friends told her there was a video of her running through a Calgary park on the account — and even more shocked when she looked for herself and saw "the sheer magnitude of the photos and the videos" that had been posted over the period of a year.

"It's scary to think there's someone out there doing this kind of thing," she said.

"As the account progresses … he got bolder and bolder with the kind of photos he was taking. So it's kind of scary to think of what could happen."

At the same time, she said, the right to public photography — including "street photography," which involves taking slice-of-life photos of strangers in public places — should be maintained.

Whether a photo is artistic or journalistic or just plain creepy, she said, depends entirely on "context" and the reason for taking it.

'Public interest test'

Jacobsen sees it in a similar way, and believes it's possible to amend the Criminal Code in a way that outlaws "creep" photography while preserving freedom of expression in a broad sense.

"What we have to be looking at is the old public interest test: Why is this being done?" he said.

"And if it's being done for prurient reasons, it's not justified."

Still, he admitted, that would be a tricky thing to do, in practice.

"I have a countervailing fear that this could be misused," he said.

"And generally, I'm not in favour of anything that restricts freedom of expression."