If you're a man -- don't look! But is it discrimination?

SBS.com reports today on a complaint that the banning of men from watching images of Muslim women without veils in an exhibition due to open in New Zealand next month constitutes unlawful discrimination. The exhibition is to be held at the Dowse Art Museum, Wellington. The Dowse is hosting the world premiere of an art installation which includes a video by Qatari writer and film-maker Sophia Al-Maria called "Cinderazahd: For Your Eyes Only". The video features women getting ready for a wedding without wearing hijabs, or veils.

Dowse director Cam McCracken -- who, in keeping with Al-Maria's wishes, has not viewed the video -- explained that Al-Maria's work would be off-limits to men in keeping with the artist's wishes. He adds:

"I've bought into the fact that we take this work on the proviso that no men see it. We respect the artist and the privacy of the women who are portrayed."

However, a man by the name of Paul Young has complained to the Human Rights Commission and it is reported that Nicholai Anderson, a senior associate at the law firm Chen Palmer, has said that banning men would be unlawful discrimination by the museum or the people displaying the work, both under New Zealand's Human Rights Act and its Bill of Rights Act. While people had rights to their own religious beliefs, he explained, the laws of New Zealand, this was discrimination on account of one's sex.

While the Human Rights Commission has yet to comment on the issue, Al-Maria has issued a statement that images should be treated as privileged and private, for women's eyes only.

Art and Privacy

Back in November, I pondered the subject of consent in relation to an exhibition of photographs by Heather Shuker of girls in toilets taken without their knowledge (see here) – and particularly questions of privacy, image rights and reputation. Similar questions have now been raised in respect of the reproduction of old mug shots on prints, posters and notebooks by US company Larken Design.

A few years ago, one of the principles of Larken Design purchased some mug shots which had been discarded by the Alameda County Sheriff’s Department in California from an antiques shop. Copies of these mug shots were then digitally retouched and reproduced as prints and posters, and on notebooks and mugs, which are now available to purchase.




While no names are revealed on the images, the use of the mug shots nevertheless raises questions as to the legality and propriety of using the shots.

The New York Times reports that the assistant sheriff for Alameda County believes that since arrest records in California are public information, dissemination is not crime, and nor is copyright infringement an issue. (Although it is not clear what his authority is for this latter statement.) However, this does not address questions of privacy and reputational damage.

Although the names of the subjects are not revealed, unlike the Shuker exhibition, it is much easier to determine the identity of the individuals. Having paid for their crimes (whatever those may have been), should these individuals not be entitled to a right to privacy and protection of their reputation, and therefore be able prevent the reproduction of their images by Larken Design? Not in the US according to Peter Swire, a law and judicial administration professor at the Moritz College of Law at Ohio State University. In his quote to the New York Times, Mr Swire says (of Larken Design): "In terms of public revelation of private fact, they can say they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos.”

I would say that the position under UK law is not as clear cut. The UK Human Rights 1998, which came into force on 2 October 2000, incorporates the European Convention on Human Rights (ECHR) into domestic UK law. Article 8 of the ECHR contains an express right to privacy that "Everyone has the right to respect for his private and family life, his home and his correspondence." Accordingly, in the UK these rights would have to be taken into account. Therefore, if it could be shown that the use of such images constituted an unjustified disclosure of private information - in respect of which the claimant could be said to have a reasonable expectation of privacy - a privacy action might succeed.

Source: The New York Times, 27 August 2011

Ai Weiwei arrest

While his porcelain sunflower seeds remain scattered across the turbine hall of the Tate Modern, the artist, Ai Weiwei remains in detention in China more than two weeks after he was arrested in Beijing.


As we reported here, Ai Weiwei's installation courted several legal problems when it opened in October 2010. These pale into insignificance however in the context of the artist's current position.

On 3 April 2011, the artist was detained at Beijing airport as he attempted to catch a flight to Hong Kong. The Chinese police have also searched his studio, confiscated his computers and questioned his assistants.

The Chinese foreign ministry has said that Ai is being investigated for economic crimes, but few further details have been supplied. However, as one of China's best known artists, known for his open criticism of the government, it seems that he has, contrary to the claims of the government, been targeted for his social and political campaigning. Indeed, in the weeks leading up to his arrest, numerous other Chinese artists, writers and online commentators were arrested and detained as the Chinese government continues to seek to quash all activists and dissidents. Further, Ai reported that he was being harassed at his Beijing studio and was under constant police surveillance. He said that the “reality of China” was that those who reflected on democracy, opening up, reform and reason were either detained or thrown into jail.

Nothing further has been heard from Ai Wei Wei since his arrest and his detention has triggered criticism from the EU, the US and other Western governments, as well as the UN's working group on enforced or involuntary disappearances. There have also been international protests staged in his support.

It is hoped that the international response to the denial of basic human rights to so many in China does not stop at criticism and that the international community starts taking action.


Source: The Guardian, 17 April 2011