The $500 fine imposed on Sydney resident Peter Mackenzie for using his mobile phone to photograph topless women sunbathing at Coogee Beach sets an important precedent about the appropriate use of mobile technology.  Appearing in Waverley Local Court earlier this month, Mackenzie pleaded guilty to behaving offensively in a public place. He later told reporters he regretted his actions and realised how inappropriate they had been, but the reality is that his behaviour was actively encouraged by vendor advertising campaigns.

Consider a television advertisement by a multinational electronics supplier this year. It opened with a young man sitting in a cafe, who was using his mobile phone to take photos of a young girl walking across the promenade. Initially, the girl was unaware that her photo was being taken. However, she soon realised and walked over to the man in the cafe, took his mobile camera phone and began to take pictures of herself rolling around on a car.

Another company ran a TV advertisement where a girl on a beach phoned her friend in a shop to show her a live video feed of a muscular man applying sun tan lotion. The man was obviously unaware that he was being videoed. The girl in the shop receiving the images then passed the phone to a male companion to view. In the tagline, the company called itself the official sponsor of eye candy.  In both cases, the advertisements depicted voyeurism as a legitimate activity. One even suggested that people like having their photos taken with or without their knowledge or consent.

Mr Mackenzie’s actions on Coogee Beach were entirely consistent with current advertising campaigns around mobile camera phone technology, however the fact that he was arrested, charged and subsequently fined makes it clear that these campaigns are out of step with reality.  This needs to change.  Governments at all levels have been busily enacting legislation to make it illegal to photograph someone without their knowledge or consent, but at the same time have been turning a blind eye to manufacturers who promote the use of these devices in ways that contradict the legislation.

In July this year, the ACS (Australian Computer Society) released its policy on mobile camera phones, including a recommendation for the development of responsible guidelines by manufacturers, retailers and promoters of this technology, to be distributed with all phone cameras sold and to accompany advertising.  Until this happens, and while manufacturers continue to inappropriately advertise mobile camera phones, the public will continue to receive conflicting and confusing signals from our legislators and advertisers.

There are literally dozens of websites on the Internet devoted to compromising photographs taken using mobile phones, mostly without the knowledge of those being photographed.  In the UK , 19 year old Shaun Nash was sentenced to six months in gaol in November for using his mobile phone to take photographs and video proceedings during a friend’s court case, forcing the trial to be aborted.  Although the youth’s motives were not sinister and the photographs represented part of his personal diary, his actions had significant consequences. In passing the sentence, Judge Roach said Nash's actions were extremely serious and that the public needed to know that mobile phones cannot be used in court.  While this is perhaps an extreme example of how inappropriate mobile phone usage can have a negative effect, it highlights the importance of good education and awareness around this technology.

By 2008, over half of all mobile phones sold in Australia will have cameras and many will also have video capabilities. The ability to record images and beam them directly to the Internet can be beneficial, for example recording the registration of a car involved in an accident or felony, but there are also numerous negative implications.  Australians need to be aware of their rights and know what actions they can take if someone photographs them without permission. One of the most pleasing aspects of the Coogee incident was that the boyfriend of one of the women being snapped took action and achieved the man’s arrest.  The subsequent publicity will have done much to raise awareness of the fact that mobile phones should not be used in this way. But that will not stop determined offenders.

What we now need is a firm commitment from mobile phone vendors to act more responsibly in advertising mobile phones, as well as a national blueprint encompassing specific laws for 21 st century predators and guidelines for community venues to protect the rights of individuals.  The Victorian Privacy Commission has done some good work in this area and should be commended for its initiatives, but a national approach is required.  A combination of technological solutions (adding a noise or flash to mobile phone cameras), education and legislation is needed to ensure the rights of all Australians are safeguarded.

First published in the Australian on December 21, 2004