The photographic
processor has always been, in the words of one jurist, "the censor of the nation's photographers." The judge objected that laws "oblige [the processor] to make a judgment whether every photograph he
prints is obscene." Stated as a dissenting opinion against conviction in the United States v. Petrov, it was written in 1984, long before digital imaging was a factor to contend with. Nowadays, a lot of photographs
may be processed without ever being printed, without ever being visible. They may remain digital encodements for the entire time the processor has them.Law builds on precedent, and precedents (finding that
invisible images on videotape can be "obscene") suggest that the processor of an "obscene" but invisible digital depiction could be in for big, big trouble of a new, new kind.
Last
month's column addressed some tribulations of "judging every photograph" processed in the digital age, from two perspectives: the laws regulating "obscenity," and the laws regulating copyright. It
concluded that regulating such content becomes all the more problematic when material arrives from anywhere and everywhere, via the modem.
A couple days after writing it, I found a forum notice on one of
the on-line services, posted by someone in the U. K.
"Finally got a copy of the Photo Marketing Association guidelines on handling potentially pornographic photographs, and permission to publish on
CompuServe from Frank Hatton of PMA. They have deliberately waived copyright on the guidelines to assist in their widespread dissemination."
This was the British PMA at work, and I thought: Good for
them! As treacherous as this situation is for the processor historically, the situation in these revolutionary times requires all the guidance the industry can get. But when I read the U.K. PMA guidelines as posted, it
was with a shudder. It was one of those moments when I was glad I was an American, safe in the land of the free.
Under the U. K. PMA's Section 3, "What is 'Indecent' or 'Obscene?"' the opening
line states, "This can only be decided by the Courts as a matter of fact in the particular circumstances of the case." In other words, the only way you can be sure, in England, that you have processed a
forbidden image, is that days, months or years later, you've been arrested, tried, and convicted.
In the absence of tangible definitions, the document proceeds with guidelines of conduct it believes will
keep the processor from getting busted. Such as, "If you have received material which you believe to be potentially indecent we recommend you immediately contact the police for further advice." This the
processor must do, if only to demonstrate good intentions if the situation later heats-up.
In so doing, the processor becomes a " snitch." That's not so bad, when you've got Roy Rogers for
sheriff. But I remember all those World War 11 movies, where people who snitched were hated and reviled, and called dirty names like "collaborator." Of course, that was in France, where evil forces took over.
It could never happen in England.
But then I had a discussion about this document with Bob Shell, editor of Shutterbug magazine, and a past publisher of PIC, a photo magazine in London. " In England,
" he snorted, "you can be tried and convicted for blasphemy!" We both had a good guffaw at that one. Imagine a country where they actually speak English, where there is not legal separation of church and
state!
Still chuckling, I placed a call to PMA HQ U.S.A., to ask about the position on such matters domestically. No, Bill Lewis told me, the PMA to his knowledge had not established formal guidelines for
digital images as such. But the PMA did have guidelines regarding "obscenity," in its publication, Photo Processing And The Law. I'd say it's about the clearest, most readable piece of writing on law I've
seen. And what it said made me wonder if it's safe to be a processor in any country?
After recounting an astounding hodgepodge of trials and jurisprudence, the PMA document establishes that there has never
been, nor probably can be, a binding legal definition of "obscenity" in the U.S. Neither can there be a satisfactory definition of "community standards." Even in America, we cannot predict whether
we'll break the law, by absolute definitions or by relative ones.
Despite that, "In this area of the law, the photo processor stands in the role of the first censor of the material submitted for
processing. This role is adopted out of necessity to avoid violating criminal law with drastic penalty provisions." Drastic penalty provisions? Read the PMA booklet yourself.The document counsels us that "The
problem for photo processors is compounded by the fact that just because something is indecent' does not mean it is obscene.'" In other words, a photograph of someone roasting a cat might be really disgusting and
morally reprehensible, but it would not be illegal. Illegalities seem mostly restricted to the depiction of specified human body parts, and bodily pursuits by one or more persons. However nudity, of itself from an
"acceptable" camera angle, is not legally obscene. Meanwhile, "In light of the use of 'community standards,' it also means that the same material might only be indecent in one community, but obscene in
another. Thus, the location of the processing plant as well as the outlet is important."
That statement resounds, through any discussion about digital trade across the world-wide web. "When a
decision to prosecute is made, the law authorizes prosecuting in either the district where material was mailed or in the district where it was received."
Maybe there was a time when it was easy to know
what the laws were in both the mailing and receiving districts. Maybe both points occupied the same district. But now, using e-mail, images that go unseen can arrive from anywhere. And how many "districts" can
we count in "anywhere?" States are districts. Counties are districts. Cities are districts. How many entities can "make a decision to prosecute?" How do we identify them all, and how do we learn all
their rules?
Even if some enterprising soul compiles a database on CD-ROM, defining every jurisdiction and its regulations, how do we stop to look each one up? Or do we just flatly refuse business from
certain venues?
Having tracked-down each provision that affects us, how do we then determine the content of each image we process? A Portfolio CD, according to Kodak, can hold thousands of pictures. Now
joining the market is DVD, whose maximum capacity is about 30-times greater. Eighteen gigabytes. How many pictures at 494 x 373 pixels could fit on that? How would you examine them all? How many lewd and lascivious ones
would you have to count, before the disc lost its "redeeming social value?"
"Redeeming social value," as vague as it may be, is one of the benefits of the land of the free. "They
see it the opposite way in England," said Bob Shell. "We say that the context can pardon the single offensive image. The English say the single offensive image condemns the context." Taken to its extreme,
a single offending image out of ten-thousand on a disc could land you in gaol. So how do you feel now, about doing business with Merrie Olde England?
Of course, just because you break their obscenity laws,
doesn't mean (as far as I know) that they can extradite you. But maybe they, like certain states of the U.S. have done, can try you in absentia, and have a warrant awaiting, should you arrive in their neighborhood. Was
the Tower of London in your vacation plans?
Today the issue is, all labs have the right to refuse any work they choose. If a barbecued cat is offensive to you, you can send the customer packing. And that's
as it should be. But there are also issues of degree. What happens next, if laws strip right and wrong and personal morals from personal conduct, and leave only the legal? Are we still civilized, when we're reflexively,
defensively conforming to regulations, and ignoring our own sense of personal integrity and social responsibility?
Even in simpler days, when there were only film prints, the laws were undefinable. Today,
along with digital media, they're virtually unenforceable.
Well, let me rephrase that. they're unenforceable universally but maybe they're enforceable selectively.
And I wonder if such
selectivity always has as much to do with justice or fair play, ethics or morality, the interests of society or civilization's progress, as with who's in charge this week?
Photographic Processing Magazine
January 1997
