Photoshop Crime

A year ago today, Thailand’s Computer Crime Act, B.E.2550 (2007,) went into effect. If you’re interested, you can find an unofficial translation of the Act here.

Most of it is straightforward computer crimes legislation that focuses on offenses like unauthorized access and causing damage to data or computer systems. It also appears to have cyberterrorism provisions in Section 12, which is unusual. (Note: This translation refers to the provisions as “sections”. I’ve also seen them referred to as “articles.” Not knowing which is correct, I’ll go with sections.)

I’m interested in the provisions of Section 16 of the Act -- its “Photoshop” section. Here is the unofficial translation of that section:

Any person, who imports to a computer system that is publicly accessible, computer data where a third party's picture appears either created, edited, added or adapted by electronic means or otherwise in a manner that is likely to impair that third party's reputation or cause that third party to be isolated, disgusted or embarrassed, shall be subject to imprisonment for not longer than three years or a fine of not more than sixty thousand baht, or both.

I find the statute interesting it essentially seems to be a photo-defamation crime.

As I noted in an earlier post, modern U.S. law really does not criminalize defamation. Working in the 1950s, the drafters of the Model Penal Code, the set of model criminal laws that has been very influential at the state level, decided not to criminalize libel, or defamation. They said, as I noted earlier, it was the most difficult decision they made. They essentially decided not to criminalize defamation because they believed civil remedies were enough, i.e., someone who’d been defamed could sue the newspaper or television station or magazine responsible and recover substantial monetary damages.

As I wrote in the earlier post, and in a law review article, that may have made sense in the 1950s and 1960s, because the publication of text and images was controlled by the mainstream media. The MSM had, and has, trained personnel, procedures and an economic incentive not to recklessly defame people; the MSM also has what lawyers call deep pockets, i.e., money to be able to pay a substantial civil judgment by someone they defamed.

Now, of course, any of us can be a publisher. In that earlier post I talked about the issues that rises, and how it undermines the rationale the drafters of the Model Penal Code relied on in reaching their decision not to criminalize defamation.

Our newly-acquired ability to become cyber-William Randolph Hearsts has a number of consequences, most good, some bad. In the earlier post I noted some cases in which people used this ability to cause varying types of harm to other people.

Since we can use our ability to publish online to harm other people, it seems we might want to consider criminalizing at least some of that activity. That’s a common reaction when we as a species find a new way to exploit our apparently infinite capacity to inflict harm on each other.
I’m not opposed to criminalizing certain types of “harmful” online publication, but doing so is not as simple a process as it may seem. Aside from anything else (e.g., political or practical concerns), criminalizing any kind of speech implicates two often problematic issues: (i) free speech guarantees (which are particularly important in the U.S.) and (ii) line-drawing.

I’m not going to go into the free speech issue here for several reasons: I suspect everyone has a pretty good idea of how the First Amendment protects most speech, even obnoxious speech; First Amendment analysis can be long and complex; and I did that in the law review article I mentioned, which you can read online, if you like. Another reason is that this post is about Section 16 of the Thai cybercrimes act, and the First Amendment is irrelevant in Thailand.

When I was researching the law review article, I found a number of stories about people whose images had been altered in photos posted online. Some were humiliated, both by how they were made to appear and, perhaps even more importantly by the fact that someone would want to do that to them. I remember reading a story about an Asian woman whose face was distorted in a photograph posted online; she said she kept wondering why someone would do that to her -- whether they thought she was a bad person or worthless or what their reasons might have been. It actually affected her life; she became something of a recluse, never knowing who around her might have been responsible (and probably wondering what they thought of the photo, and of her).

You might think she’s overreacting, but I don’t. A year or so ago, I did a presentation on this issue to a group of prosecutors, including some state Attorney Generals. I used the case of this woman in the presentation; I remember, as I was covering it, looking at the audience and thinking, “They’re not going to get this. They’re going to think this is silly, focusing on having your photo altered.” After the conference, I walked ou with a former state Attorney General. He told me he found that part of the presentation interesting because when he was Attorney General an alternative newspaper in the state capitol published an altered photograph of him . . . one that made his face look grotesque. He said it really bothered him, and I could tell it still did. He asked me, “Why did they have to do that? Why couldn’t they just use my regular photo?”

Making people look foolish or unattractive is actually a pretty effective way of attacking their ego, their self-confidence. Obviously, the impact will vary from person to person. Until I saw Section 16, though, I would not have thought of criminalizing such conduct. And that brings me back to the second issue I noted above: line-drawing.

If you’re going to criminalize posting an altered photo of someone online, how do you define when doing that is (i) great, (ii) okay, (iii) maybe a little annoying but nothing more or (iv) criminal because it just goes TOO FAR. How do you know when posting an altered photo crosses the line and becomes criminal?

The Thai provision defines going TOO FAR as posting an altered photo that (i) impairs the victim’s reputation or (ii) causes them to be “isolated, disgusted or embarrassed”. The woman I mentioned above was isolated and embarrassed, so posting her photo would qualify under this statute. The former Attorney General was embarrassed, so I suppose posting his photo online (instead of in print) would also qualify.

In the law review article, I tried to deal with the line-drawing issue by dividing harmful online publication into various categories: (i) ridicule; (ii) invasion of privacy; (iii) false light; and not-so-false light. I’ll hold ridicule for a minute, while I briefly summarize the others.

Invasion of privacy is publishing information you’d prefer to keep private; a few years ago two Congressional staffers had an affair, and she published the details (“likes to be spanked and to spank”) on a website. That’s invasion of privacy; the gentleman involved would have preferred that information not get into the public domain. This is harmful publication, but it’s true; invasion of privacy by definition involves revealing accurate information, so it’s not defamatory. False light is presenting someone as they are not; a few years a university student posted a story on a website saying her physics professor sexually harassed her and told her he was a pedophile; neither was true. (He sued for defamation and won, no damages because she was broke, but he presumably felt better.) We could probably make that a crime, but we don’t, so far.
Not-so-false light is publishing not private but discreditable information about someone, stuff they’d prefer not to see in the public domain; a couple of years ago, The Smoking Gun published mug shots of women – “Foxy Felons” – charged with various crimes. The women weren’t particularly happy about this, but since the information was true it wasn’t defamation.

In the article I argued for criminalizing defamatory publication, but not the other two. Invasion of privacy publication can represent a terrible betrayal of trust but, sadly, that is something I think we are going to have to deal with. I suggest in the article that perhaps the facility with which we can publish all kinds of information (true, untrue, discreditable, complimentary, seamy, etc.) online may ultimately make all of us far more sophisticated and discerning consumers of content. I hope so, anyway.

What about ridicule? It seems to me that this is the “harm” the Thai statute is primarily concerned with. If that is true, then I don’t think the statute is a good idea; I don’t see how it can be controlled, i.e., how a prosecutor decides when embarrassment rises to the level at which prosecution is appropriate and when it does not.

When I first saw Section 16, I thought of the “Star Wars Kid,” who was one of the examples I used in the ridicule section of my law review article. In 2003, a high school student in Canada recorded himself as he pretended to wield a Star Wars light saber (actually a golf ball retriever). He left the video in the recorder, classmates found it and posted it online and it went viral --- estimates are that it’s been viewed over 900,000,000 times. The boy was humiliated, though the people who viewed it seem to have been sympathetic for the most part. Like the lady I mentioned earlier, he felt foolish.

I sympathize with him, and with all the other people I’ve mentioned in this post, but I don’t see how we can prosecute people for embarrassing others. (And please don’t take that as an invitation to make me change my mind).