IEEE Technology and Society Magazine - Summer 2014 - 69

prima facie moral harm of intrusion. The consequences arising
from the intrusion may not be very
significant, but for their own pleasure the image-taker has taken an
image of another individual without the latter's consent and, minimal though the actual harm might
be, the pleasure has been derived at
moral cost to another without any
obvious over-riding justification.
Where such images are published
in publicly-accessible media, both
the moral harm and the potential
actual harm are more significant.
Publishing engages (from the perspective of the image-taker) issues
of free speech and of copyright, two
areas of law much challenged in a
media environment becoming dominated by wireless connectivity. No
attempt is made here to analyze these
two areas in detail. Suffice it to say
that to overcome moral objections
on the basis of privacy intrusion,
the counterclaim must have a strong
basis in the wider public interest.
The image-taker, lacking alternative
authority, must rely upon the legitimate community interest in publication of the images outweighing the
image-subject's moral objections.

The Morally Relevant
Characteristic of the
Image Subject
The final specific variable is the
image-subject. As the significant
characteristic of the image-taker is
the authority (official and/or moral)
on which the image-taker may take
an image, so the significant characteristic of the image subject is the
obverse of authority: consent. Consent can either be explicitly granted/
denied or implicitly granted/denied.
Where the image subject explicitly
consents both to the taking of the
image and the subsequent use of the
image, then consent in these circumstances negates any moral objection.
Where the image-subject explicitly
objects to the image being taken, or
to its subsequent use, then acting
against the image-subject's wishes
will be a moral wrong because the

latter's privacy has been intruded
upon and autonomy infringed. In
such circumstances image-takers
need a claim to moral justification
that outweighs the prima facie harm.
Certain categories of person are
not competent to grant consent.
These include the young (because
they are insufficiently mature in
their reasoning) and those persons
temporarily or permanently incapacitated in their mental faculties. It
follows that such individuals cannot
properly give consent either to being
imaged or to any use to which the
image-taker wishes to put the image.
Where an individual is competent to grant/deny consent, a number of additional questions arise
in calculating the potential extent
of moral harm occasioned by nonconsensual image-taking.
Has the image subject had the
opportunity to grant/deny consent?
Clearly, if the images are taken
without the image-subject's knowledge then there has been no opportunity to grant/deny consent. The
image-taker must have a strong
overriding moral claim to justify
not seeking the consent of the subject, as well a claim for taking the
images without consent. Both of
these conditions apply - it is not a
case of either or - and if either does
not, then the image-taker ought to
be able to accommodate requests
for deletion made by the imagesubject, in ways identical or similar
to those employed by Steve Mann.7
An individual entering a CCTVmonitored public area could be
inferred as implicitly consenting to
surveillance. But three issues arise:
whether the image-subject is aware
that he or she is in an area being
monitored by CCTV; whether or
not the image-subject knows who is
monitoring the CCTV; and whether
or not the image-subject knows to
what purpose the images will be
put. Implicit consent cannot reasonably be inferred, nor any justification it might offer relied upon,
7

See wearcam.orh/rfd.htm (accessed Mar. 17, 2014).

IEEE TECHNOLOGY AND SOCIETY MAGAZINE

SuMMEr 2014

unless it is clear that persons in the
surveillance arena are there because
they know all three facts and have
chosen to enter the surveillance
arena on this informed basis. Nor
is it necessarily obvious what is
being consented to even if implicit
consent can properly be inferred:
the taking of the image or making
of a recording; the storing of the
image or a recording; the sharing of
the image or a recording with others; the secondary use(s) to which
those others might put the image
or recording; all of these together
or any permutation? unless the
image-subject and the image-takers
or record-makers are clearly agreed
with each other on the answers to
all these questions (and the secondary use by others with whom
the image is shared might not be
foreseeable in any case), implicit
consent seems to offer imprecise
and therefore uncertain grounds for
moral justification.
What the images (or recordings)
are to be used for and how the information captured by the image (or
recordings) will be used runs to the
heart of consent: does the imagesubject have sufficient information
about the use to which the image
will be put in order to grant/deny
consent on an informed basis? The
image subject may have little or no
control over how images are initially used and may never be aware
of any secondary purpose to which
an image might be put. Once the
images have been shared beyond the
image-taking agency (police CCTVfootage used for reality TV shows
for example), the subject has little
or no realistic control over how they
(or the information the images contain) might be used.
Where the images have been taken
by a private individual, the extent to
which the subject has control over
the subsequent use of the images
depends on the subject's relationship
with the image-taker and anyone who
subsequently holds the images. The
subject may not know the imagetaker at all. If the image is shared on
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Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - Summer 2014