New Definitions of Crime and Punishment for Non-Consensual Photography in Japan
Beginning today both amateur and pro photographers need to be aware of new rules about whom can be photographed and under which circumstances.
What’s new: Beginning from today, July 13, 2023, "photography crime," or satsueizai (撮影罪) in Japanese, will be enforced. The new law will punish all acts of secretly filming sexual postures (voyeurism), providing such filming to third parties, and publicizing or storing such filming on the internet, video distribution, etc. Voyeurism will result in up to three years in jail or a maximum fine of 3 million yen (approximately US $21,600), and providing such filming to an unspecified person will result in an even heavier maximum of five years in jail or a maximum fine of 5 million yen ($36,100). The law will also be amended to impose a maximum of five years in prison or a fine of up to 5 million yen ($36,100) for providing voyeuristic photographs to an unspecified number of people.
Why it matters: As many visitors to Japan find curious, a law was implemented in Japan back in 2001 which mandates that all cell phones manufactured or sold in Japan must emit a sound or produce some kind of audible notification when capturing a photo. This applies to both the built-in cameras of cell phones and external camera attachments. The purpose of this measure was designed to prevent intrusive photography and to help to protect the privacy of individuals in public spaces. By generating a distinct sound, it allows people in the vicinity to be aware that someone is taking a photo and potentially act if they feel their privacy is being violated. The legislation was introduced to address the issue of unauthorized photography in public places, such as “up-skirting” or capturing images without consent.
For more than 20 years this law has, however, been criticized for not addressing the root cause of the problem, “lacking teeth,” and leaving open some gaping loopholes. Well, there is a proverbial “new sheriff in town” as of today, and some of the largest loopholes have finally been addressed—at least in theory. We shall see how the new law plays out.
Between the lines: One of the cases that triggered the revision of the law was the use of a legal loophole by a defendant who had been accused of taking a picture up the skirt of a flight attendant on a domestic flight across the country. Before today the rules varied by prefecture (state), and it was, apparently, impossible to determine over which prefecture that particular plane was flying when the problematic photo was taken because airplanes travel at high speeds. While it is somewhat difficult to believe, the courts subsequently determined that it was, therefore, not possible to pinpoint the jurisdiction for the case. The alleged perpetrator ended up having the case thrown out and escaping punishment, which, naturally, caused a public outcry and ultimately led to the establishment of the new national law to cover such crimes that went into effect from today.
Beginning today All Nippon Airways (ANA) has, for example, started to inform passengers at Haneda Airport about the new law and the prohibition of unauthorized photography by putting up posters about the "photography crime" at Haneda Airport.
"We have received multiple reports of flight attendants who may have been photographed while on duty without permission. The enforcement of the filming crime will help protect passengers and flight attendants from voyeuristic acts on board. We have been requesting the relevant ministries and agencies to enact the photography crime into law, so we are very grateful for the implementation of the law.” - Ms. Naoko Nishijima, Director, Executive Officer, General Manager of the Cabin Center, ANA
Beginning today the "crime of filming" will be applied uniformly throughout the country, making it a punishable offense. In addition, the photographed data can be confiscated (erased/destroyed).
Devil in the details. Incidentally, if the incident occurs on a Japanese aircraft, it is punishable regardless of whether the incident occurs in Japan or abroad. If the incident occurs on a foreign aircraft, it is punishable only if the aircraft is on Japanese territory and the passenger is a Japanese citizen.
Go deeper. Details about crimes related to providing and storing photographs and videos linked to sex-related crimes have also been clarified.
Secretly photographing a person's sexual parts or underwear, or photographing a person's appearance during an indecent act, etc. now will result in incarceration for up to 3 years or a fine of up to 3,000,000 yen ($$21,600). You may, as I was, be surprised by the “or” in this description. Shouldn’t the punishment require both jail time and a fine? It seems like law makers want to the courts to be able to have a degree of flexibility for determining the appropriate punishment—perhaps depending upon prior offenses, extenuating circumstances, etc.
Providing stolen images either to a specific limited number of individuals or to an unspecified large group of people will result in imprisonment for up to three years or a fine of up to ¥3,000,000 ($$21,600). Publicly displaying such photos will result in up to five years of jail time or a fine of up to ¥5,000,000 ($36,100).
Storage of voyeuristic images for the purpose of offering or publicly displaying them will result in imprisonment for not more than 2 years or a fine of not more than 2,000,000 yen ($14,400), or both. It is curious to note the potential for both a jail sentence as well as a fine is covered only by this particular offence.
Transmitting images of sexual postures, etc. through live streaming, etc. will result in up to five years at a correctional facility or a fine of up to ¥5,000,000 ($36,100).
Photography that constitutes a crime includes the following:
Taking a picture secretly without a justifiable reason;
Filming a person in a state that makes it difficult for the person to form, express, or fully comprehend his or her will not to consent, or taking advantage of such a state;
Misleading a person into believing that the act is not sexual, or taking advantage of the person's misbelief; and
Photographing a child under 16 years of age in a sexual posture, etc., without justifiable reason.
Of note. There are exceptions to the new rules—including some that are controversial.
If a physician takes photographs in accordance with the rules of medical practice, it does not apply to the act of photographing sexual postures, etc.
In addition, cases in which a parent photographs a child under 16 years of age bathing in the garden as a record of the child, or in which a parent photographs a child during a wrestling match (e.g., sumo), are also excluded.
Taking photographs of a child under 16 years old in sexual postures, etc., without justifiable reason is prohibited. The new rules apply to any form of photography, whether it is done for the purpose of making money or not. This includes taking pictures with a cell phone camera, as well as using professional equipment.
Recently, "athlete voyeurism," in which athletes are photographed with sexual intent, has become an issue. However, photographing an athlete's crotch during competition is not covered by the new "photographing crime" law because the photographer is consider to be taking a picture of the athlete's uniform.
The Japan Student Athletic Federation (JSAF), which oversees university athletics in Japan, has long been pressed to take action against "athlete voyeurism.”
According to Director Megumi Shigeko, the federation began taking measures when it discovered DVDs with infrared cameras that transparently filmed athletes were being sold, and in 2006 began putting up posters to prevent voyeurism and patrolling the stadiums.
Since that time there have been cases of people filming from seats right next to each other or across the aisle and/or using telephoto lenses. Therefore, in addition to restricting the direction of photography, such as the starting position and the finish line, the committee decided to prohibit photography outside of competition (before the start and after the finish, etc.).
It is not only female players who have been victimized. Male athletes have also been the victims of filming targeting the lower half of their bodies.
Although JCAA committee members and student assistants cooperate in patrolling the area during the competition, there is a limit to feasible enforcement. When the volunteers find people violating the photography rules, they ask them to move or explain the rules to them. The volunteers are, however, frequently shouted down or even told, "You're making fun of me.” Some of the accused demand the return of the price of admission.
Starting with the 2019 Individual Championships, amateur photographers at sporting events were asked to submit an application form for filming with their name and contact information. Permits are then issued, but compliance has been low. Recently there are more and more cases of people using binoculars with video cameras and smartphones with extended zoom. Thus, it is getting to be virtually impossible to identify unscrupulous photographers.
What’s next: While the bottom line is simply to ask for consent before taking a photo, confusion is likely.
"Our request is that if you ask us to take photos with you and obtain the person's consent, we believe that this will eliminate the cases where trouble occurs.” - ANA's PR department clarifying the rules that pertain to taking commemorative photos with flight attendants and uploading them to social media
Yes, but. Of course, as in the past, there is no problem with photographing the scenery outside from inside the aircraft or taking pictures of the in-flight meals. The airline industry as a whole does not want to prohibit people from taking photos and videos of their enjoyable travel experiences, but rather it wants to ensure that both the people involved in the airline business and the passengers have a hassle-free trip.
Hmmm…something tells me that this may not go to plan. What do you think?
Links to Japanese Source: https://weekly.ascii.jp/elem/000/004/144/4144914/ and https://news.yahoo.co.jp/articles/df58addeac7b2f3dfb608658f46d86fb42f1781c
#撮影罪 #無断撮影禁止 #盗撮 #性的姿勢撮影等処罰法 #アスリート盗撮 #consent #nosneakphotography #voyeurism
Wow! How very complicated, and probably a legal minefield. Our freedom to act is evaporating drip by drip. They won't be happy until we are living like hamsters in cages. We will own nothing; but will we be happy?
Interesting. I don’t have a problem with the (hopeful) crackdown on “upskirt” or “see-through” (never heard of this before) types of exploitation, or of minors of course. And while I respect the general concern for privacy in Japanese culture, as a street and candid photographer I do hope these forms of expression can continue - in a respectful manner.