19th September 2012
Our body is PURELY our own, and so no one can use it for private gain without our permission. That is a first principle of liberty.
In most cases we don't mind if our photo is published in a newspaper or we come on a TV show. Most people will go to extraordinary lengths to make themselves "presentable" for such "photo opportunities".
When we voluntarily present ourselves for public inspection in such a manner, it is perfectly fine for our photographs to be published.
Thus, there is no humiliation involved when Duchess Kate voluntarily presents herself, fully prepared and dressed, in a public forum. She is delighted to be present in such a forum. The audience is delighted to see her happy. The photographers have a legitimate role in publishing these photos.
Even when someone walks down a street (a public place) it is reasonably legitimate to take a photo of a person as part of the overall scenery. Tourists do that all the time. I must show up as a random figure walking by, in the background of tens of tourist photos near the Victorian Parliament and fountain near my workplace.
But when someone is NOT prepared for public inspection, or not VOLUNTARILY ready to meet or greet someone, then our liberty to control access to our body comes into place – and it is ABSOLUTE.
A mere gesture asking people to leave us alone should be enough. Or a signboard in a nudist beach.
To the extent that paparazzi FORCE their photographic lens on someone who is NOT prepared for PUBLIC inspection, and has NOT consented, there is clearly a breach of liberty involved.
Paparazzi have no freedom to take photos of an unsuspecting, unprepared celebrity for their PERSONAL GAIN. Even for viewing privately.
They are accountable for their breach of the celebrity's liberty to use her body as she pleases.
Court remedy for painting nude Hindu goddesses/ smearing Mohammed
It must be absolutely maddening to some Muslims to see the British royalty undertaking such a massive defensive exercise for photos of Duchess Kate, but that google blatantly ignores their concerns and has retained that offensive movie on Youtube. Google is effectively telling the Muslims of the world: "We believe there is freedom of expression to libel your Prophet". But the same google could well remove the unwanted pictures of Duchess Kate if the court says so.
Similarly, some Hindus must be really offended that M.F. Hussain is allowed to get away by painting nude goddesses, and they are told he has "freedom of expression".
The problem from the court's perspective, of course, is the non-existence of the aggrieved party. Mohammed is dead and can't defend himself. And Hindu goddesses can't do that either.
This means that those who believe in Mohammed or the Hindu goddess can do nothing about this. This frustrates them to no end. It irritates, bothers, and infuriates them.
Basically the world is saying this: While you are alive, the slightest distortion/ invasion of your liberty by an offender can lead to a jail term for the offender. But after you are dead (e.g. in the case of Mohammed), your entire life story is up for grabs. It becomes perfectly legitimate after your death to smear you, distort your life story. And to put it up on google for millions of people to see. Not just mockery, but fraudulent distortion is also TOTALLY ACCEPTABLE.
I think there is a fundamental flaw in this argument.
Duchess Kate was humiliated by these photos. But many Muslims were DEEPLY offended by the movie under question. If Duchess Kate can't "take it and lump it", or "not watch these photos", etc., then why should Muslims "take it and lump it" or "not watch the Youtube video"?
The world will need to resolve this issue lest it be seen as a case of double standards. And there must be a consistent law on this matter.
I'm not a fan of psychological harm, but I believe that every harm can be quantified, and therefore compensated – even for one cent.
I'm increasingly inclined to re-affirm the remedy which I had proposed earlier. In summary, the remedy is the following:
a) All such matters should be dealt with purely as CIVIL matters. In the case of Duchess Kate's photos, the photographer/editor was purely driven by greed: the desire to make money out of her body. Duchess Kate is entitled to take the photographer/ publisher to the cleaners. But this should NOT be made into a criminal matter. Like most common offences for financial gain, damages are sufficient penalty. Indeed, one could argue that photographers make their living out of photos, so like an artist who has some license, photographers must not be treated as criminals for such actions.
b) Further, ANYONE who is offended deeply and can show cause, should be able to sue for damages. In the case of the offensive Mohammed video, NO commercial gain was intended. Hence the damages can only be for personal discomfort caused. If sufficient people combine to sue the offending party, the sum total of damages in such "class action" suit can be substantial.
I disagree with Shashi Tharoor about any inevitability of Muslim violence
At the talk yesterday at Australia-India Institute, Shashi Tharoor said that we have to get used to the idea that some idiot will offend the Prophet, and some idiotic Muslims will use it as pretext for violence.
I disagree because this is NOT a solution. It merely rejects the psychological pain experienced by a LIVING person. No matter how small the potential compensation, such pain should be allowed recourse through courts.
Duchess Kate's sense of humiliation is real. She is entitled to compensation for that humiliation.
Similarly, outrage and alarm experienced by (some) real, living Muslims at the DELIBERATELY offensive treatment of their Prophet is real. We can't just say to them: Mohammed is dead, so suck up and live with this sense of betrayal/ humiliation/ pain.
I believe that if the law were to allow class action suits for demonstrable harm experienced through an offence, then extremist Muslims who feel offended will stop violence, and instead, will combine and sue for damages. Courts can determine appropriate damages, and the matter will resolve itself. That will be the only civilised way out of this problem – which is not going to go away anytime soon.
Once such option exists, editors (and publishers like google) will become more conscious of any real harm they may cause. This approach, which is consistent with first principles of liberty, will bring falsehoolds and slander to a halt. Academic discussions/ oppositional reasoned views, etc. will flourish. The benefits of freedom of expression will remain, while the harm caused by malafide expression will be curbed.
Shashi's idea that we should get used to endless violence is not a sensible way to deal with this issue. It is also inconsistent with the treatment of some kinds of psychological harm. We must firmly defend freedom of expression, but allow compensation where harm is demonstrated.
Note that I'm not talking about perceived psychological harm, but demonstrable psychological harm.
Note that I'm NOT talking about any active role for government. No bans. No reduction in freedom of expression. But let courts consider and award damages.
Although each individual Muslim's compensation will likely be very small (e.g. cost of loss of sleep for one night?), the sum total of damages awarded against google could be substantial