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If you go to a cinema and there's a couple making out in the darkness,* is it legal to photograph them?

In several jurisdictions, it is legal to photograph someone in public even if they don't agree with it. On the other hand, you are intentionally recording them performing a private act (and they are likely to not consent to you recording), which should be voyeurism and therefore illegal.

I've no particular jurisdiction in mind.

*This is apparently quite common; if one Googles for "how to make out in a cinema" there are many pages of results, e.g. this.

Dale M
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Allure
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3 Answers3

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The offence of voyeurism (Criminal Code, s. 162) would not be made out on the facts described in your hypothetical.

162(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

Surreptitious observation or recording does not on its own make out the offence of voyeurism. There needs to also be the additional elements of:

  • a reasonable expectation of privacy, and
  • one of:
    • the place being one in which a person can reasonably be expected to be nude or exposed (s. 162(1)(a));
    • the person actually being nude or exposed, with the observation or recording done with the purpose of observing or recording the person in that state (s. 162(1)(b)); or
    • the observation or recording is done for a sexual purpose (s. 162(1)(c)).

162(1)(a): The Supreme Court of Canada has said s. 162(1)(a) covers "quintessentially 'safe places'", "such as a changing room, toilet, shower stall, or bedroom" (R. v. Downes, 2023 SCC 6). It is unlikely that a cinema would fall within the category of places covered by s. 162(1)(a).

162(1)(b): Your hypothetical does not say the subject is nude or exposed, so s. 162(1)(b) is irrelevant.

162(1)(c): Your hypothetical does not state any particular purpose for the observation or recording, let alone a sexual purpose. Thus, s. 162(1)(c) is also irrelevant.

Jen
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19

- No, you can not make pictures of people like that.

First of all, you don't have the right to photograph random people in Germany, especially if they are vulnerable. § 22 KunstUrhG and 201a StGB are rather clear about the act of photographing and publishing. But that is just the base layer, as personality rights are more encompassing. German courts have ruled that the sheer impossibility of controlling publication can (but does not need to) cut heavily for deleting such unwanted photos, even if the law says only publication is banned: The possession of photos alone can implicate rights of personality, especially how easy it is to lose sole control of digital images these days. One such case was the BGH Judgement of 13. 10. 2015 AZ ZR 271/14, in which a woman demanded the deletion of private, unpublished intimate pictures that previously had consent from their ex - a request that has to be obeyed, the highest German court ruled.

BUT, it is doubly banned: Making out is part of the most intimate sphere the courts accept. While making out in public could fall under "Erregung öffentlichen Ärgernisses" (§ 183a StGB, public indecency) if enough obvious sexual is done (e.g. hands under the other's clothes to actual sex), the mere act of deliberately and surreptitiously watching such intimate acts for one's own gratification can be treated as an insult (§ 185 StGB) no matter if the couple did a wrong or not. However, photographing or filming intimate scenes without consent in which naked or underwear-clad skin of genitals, butt, or female breasts are visible also violates § 184k StGB in itself - and the more raunchy the act, the more clearly that will be true.

Further the matter is heavily complicated by the age of the depicted: Highly suggestive material is classed as pornographic by itself. So the picture could be child- (0-13.99) youth- (14-17.99) or just normal pornographic, and they have different possession standards (possession and publication illegal for everybody § 184b StGB / possession possibly legal but publication for sure illegal § 184c StGB / allowed to own (and publish) for adults only § 184 StGB)

Trish
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CRIMES ACT 1958 - SECT 53R Producing intimate image CRIMES ACT 1958 - SECT 53R Producing intimate image

(1) A person (A) commits an offence if-

   (a)     A intentionally produces an image depicting another person (B); and

(b)     the image is an intimate image; and


(c)     A knows that the image is, or probably is, an intimate image; and


(d)     the production of the intimate image is contrary to community standards of acceptable conduct.

(Non-relevant examples omitted)

(2) A person who commits an offence against subsection (1) is liable to 3 years imprisonment.

(3) A does not commit an offence against subsection (1) if—

   (a)     B is not a child; and

(b)     at the time of the production of the intimate image, B consented to—


     (i)     A producing the intimate image; and

     (ii)     how the intimate image was produced.

Note

A mistaken but honest belief that the production of the intimate image is not contrary to community standards of acceptable conduct is not a defence to this offence—see section 53V.

where:

"intimate image" means an image depicting—

   (a)     a person engaged in a sexual activity; or

(b)     a person in a manner or context that is sexual; or


(c)     the genital or anal region of a person (whether bare or covered by underwear); or


(d)     if a person is female, or a transgender or intersex person identifying as female, the breasts of the person;

And:

"produce", in relation to an image, means—

   (a)     filming, recording, taking or otherwise capturing the image; or

(b)     digitally creating the image;

And:

CRIMES ACT 1958 - SECT 53U Community standards of acceptable conduct CRIMES ACT 1958 - SECT 53U Community standards of acceptable conduct

(1) Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances.

(2) For the purposes of subsection (1), the circumstances include—

   (a)     the nature and content of the intimate image;

(b)     the circumstances in which the intimate image is produced or distributed;


(c)     the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the intimate image;


(d)     the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image.

And:

CRIMES ACT 1958 - SECT 53V No defence of honest and reasonable mistake CRIMES ACT 1958 - SECT 53V No defence of honest and reasonable mistake It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

   (a)     for an offence against section 53R(1)—production of the intimate image was not contrary to community standards of acceptable conduct; or

(b)     for an offence against section 53S(1)—distribution of the intimate image was not contrary to community standards of acceptable conduct; or


(c)     for an offence against section 53T(1)—distribution of the intimate image would not be contrary to community standards of acceptable conduct.

Note

The reference to A in this section is a reference to the same A referred to in sections 53R, 53S and 53T.

Unless the couple who were 'making out' (i.e. engaging in a sexual activity) were first asked and consented to the taking of the photograph, then the photographer may have committed an offence.

It may be that a couple making out in a movie theatre (a public place) have committed an offence such as sexual exposure (https://classic.austlii.edu.au/au/legis/vic/consol_act/soa1966189/s19.html) if they are displaying their genitals, or another offence (such as under the SUMMARY OFFENCES ACT 1966 - SECT 17 Obscene, indecent, threatening language and behaviour etc. in public) in which case taking a photograph without consent for purposes of submitting it to the police to enable prosecution would be legal.

However, if the couple are not committing an offence when the photograph is taken and have not given consent, then the photographer has committed an offence.

While a movie theatre is a public place, a couple 'making out' at the back of a theatre so that there are no observers behind them and are hiding behind the row of seats in front of them could argue that in the circumstances, since other members of the public would be expected to be looking away, and wouldn't normally be able to see their genitals or other 'indecent' parts of their bodies, that their actions were not disruptive (the prevention of which is the purpose of the SUMMARY OFFENCES ACT 1966 - SECT 17), and therefore the taking of an intimate image without their consent was not appropriate.

So, unless genitals (or other parts of the body such as breasts or anus) are clearly visible in this public place and other patrons are obviously aware and offended by the couple's actions, taking a photo of their sexual activity (even if fully clothed) without their consent is an offence, even if you don't necessarily think that it is an offence. In theory, you could be charged for taking such a photo even if it was given to the police if the police declined to lay charges against the couple for their actions.

Monty Wild
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