Wikipedia talk:Private photos of identifiable models

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An alternative policy is being discussed here: Wikipedia:Content legality
See also: Wikipedia:Publicgirluk photo debate

This page was created because of this debate which to my mind doesn't seem to be actually going anywhere. So let's just write a policy proposal. Theresa Knott | Taste the Korn 10:21, 28 August 2006 (UTC)

Geogre I think a sliding scale policy is a bit complicated. Why not simply say we want the model's permission and let people use reasonable judgement as to how strictly we need proof of that permission? I am always wary of too many instructions.Theresa Knott | Taste the Korn 10:42, 28 August 2006 (UTC)

I understand the wariness, and I'm loathe to have a scale of any sort, except that the questions during the debate showed an obliviousness to the factors that were causing the others of us to question the uploads. Perhaps we could simply have them as "factors to consider" rather than anything resembling a policy. It's not that hard to identify the concerns that elevate "pearl necklace" above a bra and panty shoot, but there were so many people applying strictly legalistic reasonings that some statement of common sense seemed necessary. (One person said that, because her mammary glands were not shown, it didn't matter that her face was covered in ejaculate, because a hyper-legal reading of statute said there was no nudity!) The point being that we need some way of guiding people in understanding when to trigger a higher level of proof. I agree that point scores and the like are a bad idea, and that's why I said, "how to use it if it is to be used." I'd rather not see it used like that, to see simply a person saying, "Right: the model might be below the age of consent, so that means we go up a notch" or "I think we should go up a notch because that man holding a rhinoceros's penis, even though he's doing it for artificial insemination, might be compromised by the photo." Geogre 11:36, 28 August 2006 (UTC)

• By the way, feel free to move my "guide" or label it. I was spitballing. Your considerations below (currently) are good ones and reflect the general "public figure" and "expectation of privacy" laws of the US (and probably UK). Any public figure surrenders some privacy rights, and anyone in a public space does, too. I just felt that some consideration of what is shown is necessary. Geogre 11:39, 28 August 2006 (UTC)

Contents 1 Retroactive? 2 tinkering 3 What is permission? 4 Another way to go 5 This seems odd 6 Disclaimer 7 Time to call the lawyers? 8 Exemplar of the need for model releases 9 IANAL, but 10 Image-based confirmation of GFDL 11 I found some old similiar discussions 12 Another issue: possibly defamatory descriptions? 13 Counter proposal 14 message inappropriately posted to main article 14.1 Only correct a problem when there is a problem

[edit] Retroactive?

If this becomes policy, are we going to go through the hundred of images of this type and tag them all? If we get no response from one that has been here for 2 years because the uploader is long gone do we just delete it, even it was acceptable when uploaded and the time between? Or is this for new images only? HighInBC 13:55, 28 August 2006 (UTC)

• Hundreds of examples of identifiable models used for photos that show something pornographic or illegal? I can't think of a single one. Help us out by giving an example, please. Geogre 14:43, 28 August 2006 (UTC)

Ok, these range from clearly pornographic, to simply nude:

Image:Orgasm.jpg - Image:Frau-2.jpg - Image:Mohave - Judith.jpg - Image:Nacktreiten.JPG - Image:Postpic.jpg - Image:CSD 2006 Cologne BDSM 09.jpg - Image:Dani chained in a dungeon.jpg - Image:Pregnancy 26 weeks.jpg - Image:Body painting.JPG

I am going to stop here, but I could go on. HighInBC 15:09, 28 August 2006 (UTC)

No, please do. 1. Film still. 2. Potentially questionable. 3. Dead subject/old art. 4. Possibly questionable, but "explicit permission of person depicted" is assured. 5. Dead subject/old art. 6. Public space/no expectation of privacy. 7. Surface mail provided for authorization, but very likely one where the subject has not consented explicitly. 8. Suspect copyright status; it's from another website and apparently used as fair use. 9. Public space. So, of 9 you provide, there is one that is likely to be a violation of the proposal and two that bear investigation -- both from .de. This is not a Commons proposal we're making here but an .en Wikipedia one. Geogre 18:01, 28 August 2006 (UTC)

(edit conflict)Good lord! You have completely the wrong end of the stick from what I intended. frau-2 is not a sexual or compromising photo, and doesn't look private.Judith - Mohave comes from a local government source and is in the public domain. Nacktreiten is not a sexual photo and states on the page that it is realesed with the explicit consent of the model anyway. Postpic is a picture from a postcard and therefore not a private picture.CSD 2006 Cologne BDSM 09 is clearly in a public place, Pregnancy 26 weeks is not a sexual picture, body painted is not a sexual picture and is in a clearly public place.

Removing all those pics leaves two, orgasm and Dani chained in a dungeon. Theresa Knott | Taste the Korn 18:14, 28 August 2006 (UTC)

I am done looking up nude pictures today. Mabye tommorow. HighInBC 18:05, 28 August 2006 (UTC)

This policy is not intended to cover nude pictures. It's intended to cover private or potentially private, compromising pictures. Theresa Knott | Taste the Korn 18:15, 28 August 2006 (UTC)

"Orgasm" comes from a film, so we can remove that one, too. We agree that the Dani chained one looks fishy. (I thought Frau could be investigated more. The naked rider is not sexual, but we can never be sure that she wants the picture getting about except for the uploader's note that explicit permission was given.) Otherwise, even the people who collect dirty wiki-pictures don't seem to have many/any that this would apply to. Geogre 18:22, 28 August 2006 (UTC)

If you pose for a camera the you are aware that your picture is being taken. If you have a deal, vebal or otherwise, that says the photo will not be release then it is up to the people who are involved in that agreement to make us aware of it. I certainly think due restraint should be use when the subject seem unwilling or unware of the photography. HighInBC 13:49, 29 August 2006 (UTC)

[edit] tinkering

I tinkered with some of the grammar and wording but nothing substantive. I think this policy discussion has merit, thanks for starting it. ++Lar: t/c 14:20, 28 August 2006 (UTC)

[edit] What is permission?

Currently all the proposal requires is "that the model (or the model's parent or guardian in the case of a minor) gives permission for the photo to remain on Wikipeda". Under any ordinary circumstance, GFDL-self + assume good faith would be enough to meet that burden assumming the uploader wasn't a troll or otherwise engaged in dubious behavior. In the Publicgirluk case, I am fine with that, but many people apparently aren't. If this proposal doesn't spell out the requirements for demonstrating permission under these circumstances then it is effectively pointless as it does nothing to clarify the core of the dispute. Dragons flight 14:58, 28 August 2006 (UTC)

• I think you're right that that's the burden we need to shoulder. I don't think that a photo with a sign is at all worthwhile, but I do think that a requirement for a real name plus affadavit is possible. I.e. require, for this use only, a use of a person's legal name with avowal that he or she has permission. That would need to be filed separately and not with the image's display, but it would indemnify Wikipedia. The point is that it's not "due dilligence" to just accept "LordViperScorpion44" saying that the picture is of his child and that it's great stuff to have it. We're extremely exposed in a case like that. No one wants to test the "common carrier" statutes, I'm sure, when it's easy enough to avoid it. Geogre 15:06, 28 August 2006 (UTC)
  • Possible, but I think it would constitute a burden that we don't have on other pictures and serve primarily to aid those who want to censor the encyclopedia. A combination of trusting GFDL in general and good judgement should be good enough for us. If we want more, it should apply to nonoffensive images as well. --Improv 15:50, 28 August 2006 (UTC)
  • Can you be more specific on what you are imagining? Simply sending an email saying "I am Hugh Hefner, and I really truly have permission", or the like, would seem very unlikely to stop trolls (who would just lie about their identity), but doing anything more complicated (e.g. notorized statement) could quickly become very burdensome. Incidentally, the quickest way to void the common carrier protections is for the Foundation to be in the business of routinely requiring permissions be established. Once you become a gatekeeper, you become liable for your mistakes, whereas with an open medium you aren't liable for the actions of users. It would be much better overall if the policy on this, whatever it shall be, be enforced at the admin level and not at the Foundation level. Dragons flight 15:51, 28 August 2006 (UTC)
• Improv, yes, this is for one class of image. That's what we're talking about here: ones where the potential harm is not to intellectual property, but to livelihood. Dragons flight: If we had even, "My name is Hugh Heffner, and I give permission, because that's a picture of me," it would be sufficiently dilligent, because we can then say to any enquiry, "Mr. Hugh Heffner of Chicago Illinois is the source of the image and swore that he gave permission for his own picture to be up." Otherwise, the question here is not "is this going to offend someone," but "is this an image of you that you consent to free license." Is this "Brad the Cad" taking a picture in secret of the naked girlfriend and then e-mailing it to his buddies and ruining her reputation, or is it a model who understands that she will get no further payment or ownership of the image once it's released? Does she consent? If she cannot consent, do her legal guardians consent? This is a heavy, dark line between accidentally infringing upon copyright and serving as boyfriend revenge or pedophile nexus, a line that is moral, whether it is legal or not. I would suggest, by the way, that a person claiming to be Hugh Heffner and having a non-Playboy.com e-mail address would be easily recognized as spurious. Geogre 18:08, 28 August 2006 (UTC)

• Other than showing ID to get an account(which will not fly) this whole process of verification is going to be very... imaginative? The idea of holding up a sign saying Yes I am user so in so seems a bit strange, perhaps the person does not own a camera but has a picture of themselves. HighInBC 19:17, 28 August 2006 (UTC)

• • Some sites that trade in stock photos (eg http://istockphoto.com) manage this via signed model release forms that are signed and witnessed in real life and then scanned and uploaded. See, e.g., [1]. Yes, that's a bit of a pain in the neck. So, I'm told, is getting sued. Nandesuka 21:26, 28 August 2006 (UTC)
    • Commercial image sales are quite a bit different than what Wikipedia engages in, and in general we should wait to hear from Brad (the foundation's lawyer) before making decisions based on what may or may not be legally necessary. Dragons flight 21:38, 28 August 2006 (UTC)
      • I find the argument that we shouldn't take reasonable, widely-accepted steps to ensure that images of identifiable people on Wikipedia were given with the permission of those depicted, just because it might not be legally required to be very puzzling. It's a trivial step, it reduces the possibility of abuse and it's the ethically right thing to do. Why should we wait for the foundation's lawyer to mandate it before trying it? Nandesuka 04:13, 29 August 2006 (UTC)
        • If the example you give is to be the template, then a witnessed form that requires legal name, address, phone and email address, could have a very chilling effect on someone interested in submitting sexual materials. I would not consider this a trivial step at all since it also requires having some infrastructure to collect and organize such forms. Maybe it can be a solution, but I don't think it is necessary that it be the solution. Of course Nandesuka, if you haven't noticed, you and I are no where close to agreeing on what is ethically neccesary behavior in cases like this, so don't be surprised that we disagree. I still hold that any established contributor working toward the benefit of the encyclopedia should be trusted to be acting in good faith unless evidence to the contrary exists. Dragons flight 04:26, 29 August 2006 (UTC)
• A picture is, to me, beyond the bound. It's possible to ask someone to hold up a sign to show that she is the model, but that is extraordinary. What I want is for us to take the measures that we can reasonably take to ensure the protection of living persons and their futures. A signed model release is perfect, and it's possible to have those as images ("scanned") that do not display on Commons but are kept in the Foundation servers. It wouldn't be hard, wouldn't require massive new instructions, and we wouldn't be having to say, "Hmm, that doesn't look like your handwriting." Just a scanned model release to assauge our moral sense. Geogre 21:41, 28 August 2006 (UTC)

[edit] Another way to go

Instead of saying x type of content requires y, why not a blanket policy like this:

When the consensus of the community feels that the content of a contribution may pose legal threats to wikipedia it is reasonable for the community to take actions to resolve the concerns.

My only real problem with how the Publicgirluk issue was handled was that I felt she was being singled out. A simple policy like the one above will allow us to deal with such situation without making it personal. When you rebuke somone without a policy to point to it does seem personal, that does not mean the policy needs to be overly specific.

This type of simple policy based on common sense and consensus and is really just a clarification of existing policies and causes less policy creep than what is currently proposed. This handles other types of content that could pose a legal threat to wikipedia that we have not imagined yet(not giving examples per WP:BEANS). HighInBC 15:18, 28 August 2006 (UTC)

Perhaps something like WP:Content legality would be a good name, of course a better one may be found. HighInBC 15:19, 28 August 2006 (UTC)

Some years ago, there was a Wikiproject that was violating copyright in a big way. Some of us pointed this out, but the "community" thought it was okay and fought to keep on doing what they were doing. Almost a year after it began, Jimbo had to order hundreds of pages deleted. I have no faith in "the consensus of the community" as a standard for judging complex legal questions that most members of the community will have no experience with. Much better to have specific guidelines about what is covered and what is not, preferabbly informed by legal counsel, when relevant. Dragons flight 15:30, 28 August 2006 (UTC)

If you have no faith in "the consensus of the community" as a standard for judging complex legal questions, then why do you suggest that "the consensus of the community" build specific guidelines dealing with complex legal questions? HighInBC 15:38, 28 August 2006 (UTC)

I don't. I believe the legal aspects should be informed in consultation with Foundation legal counsel. Beyond that though, we can discuss good editorial practices quite apart from legal burdens. Dragons flight 15:54, 28 August 2006 (UTC)

I see... I agree that legal counsel is needed, and that the finding should be made available to the people trying to build consensus. Wikipedia:Policy on private photos of identifiable models or Wikipedia:Content legality could refer as a reference. HighInBC 18:14, 28 August 2006 (UTC)

Personally I am not arguing for a policy that protects Wikipedia from potential legal threats. I don't think that's how policies should work here. Let the OFFICE deal with legal issues. I am arguing for a moral policy,where we try our best to do the right thing because it is the right thing to do and not because we are afraid of getting sued. Our policy on no personal attacks was formed because personal attacks are a bad thing and not because people can redress them though the courts (they can't). Likewise with this. It is simply obvious to me (and I presume with most people) that posting sexual photos of someone taken in a private setting without thier permission is morally wrong. So I want to see a policy in place that simply states this obvious fact. And I want this policy in place to be nothing to do with whether Wikipedia is legally obliged to have it or not. Theresa Knott | Taste the Korn 18:29, 28 August 2006 (UTC)

Seconded. -- User:RyanFreisling @ 18:30, 28 August 2006 (UTC)

Hmmm... I think that would make a better guideline than a policy. HighInBC 18:42, 28 August 2006 (UTC)

I think everyone agrees that what you describe is evil, but there appears to be a wide range of opinions regarding the level of evidence/lack of proof that should be expected before worrying about that issue. Ranging from giving the uploader every benefit of the doubt to insisting on firm model credentials and written consent for every nude or compromising image. Personally, I fall in the camp that people working to improve the encyclopedia should be trusted until there is some evidence to justify doubt (at least firmer evidence than the theory that no attractive woman would choose to post sexual images of herself online). Dragons flight 18:50, 28 August 2006 (UTC)

Seconded. HighInBC 18:52, 28 August 2006 (UTC)

(edit conflict)To avoid policy creep I believe that consensus should be done on a per picture basis through the IfD proccess based on a simple blanket policy to protect people from misrepresentation or embarresment. As Geogre pointed out a picture can be acceptable for a number of reasons. HighInBC 19:05, 28 August 2006 (UTC)

When I see floods of attractive young women who do desire to spread images of themselves naked online with no recompense, without fame, without anything at all in return, I'll believe that it's an even chance that the photo is moral. Until then, even people like Ana Voog have a motive other than, "See me, feel me" in what they do. If compromising and sexual images legally and freely licensed are common, it should be easy to give evidence. In all my time at Wikipedia, I have seen one purported case, and that's the one that started this. The novelty of it alone would be enough to make someone suspicious. This is prudence, not cynicism. Geogre 19:01, 28 August 2006 (UTC)

Well I do see this sort of thing all the time. I know several girls including my wife who have posted nude pictures of themselves with no expectation of gain. There is nothing immoral about that. Just turn safesearch off on google images and search for flashing boobs, people do do this and it is not a strange or rare event. HighInBC 19:08, 28 August 2006 (UTC)

Here is another case that caused no stir to match your one: Image:Downblouse.jpg. Her face cannot be seen, but she is identified on the description page. It is an example that girls do take pictures just for a wikipedia article. HighInBC 19:09, 28 August 2006 (UTC)

• A tease photo is one thing, but a sexually explicit one is another. It's true that the web is full of nudes and more, but most are with an expectation of gain or have been paid. That's my point. Most of what the web offers is still scans from pornographic magazines illegally repackaged, but it also has stills from cheap digital filming, etc. Again, no argument that nudity is all over, but we're just trying not to exploit folks or participate in that exploitation. I really doubt the publicgirluk photos. Whether I'm right or wrong about my doubts, I think it's reasonable to hold the doubts. If, for example, that was an amateur picture taken by "boyfriend," then I could foresee a corporate career highly compromised by "you suck" images floating about. Geogre 19:18, 28 August 2006 (UTC)

Doubt, watch carefully, but don't say prove your innocence when you have no evidence of guilt. HighInBC 20:10, 28 August 2006 (UTC)

[edit] This seems odd

It says In photographs that are covered by this policy, Wikipedia requires that the model (or the model's parent or guardian in the case of a minor) gives permission for the photo to remain on Wikipeda.

Isn't that what we do now for every picture? Publicgirluk did give permission for the photos by making them GFDL. This isn't about giving permission, but demanding proof. As it stands this policy seperates a set of content then applies the same rules. HighInBC 19:26, 28 August 2006 (UTC)

The trouble is, the copyright holder is the person who can make them GFDL. The copyright holder is usually (though not always) the photographer and not the model. So personally I am a little suspicious and do want some proof that the model herself has given permission. I cannot see why asking someone to take a photo of themselves holding up a wikipedia placard is a terrible thing to do. These photos are unusual.

I've just come back off holiday. Before I left I went into my bank and drew out over a month's salary in one go. The cashier was a little suspicious over such a large amount being withdrawn. It was unusual. So she asked me some security questions and requested proof of identity. Did I get in a huff and state that she was newbie biting or being unfair or singling me out? No I answered her questions and showed her my passport, no big deal. Unusual photographs require more proof of permision than more mundane ones. I cannot see a true exhibitionist fretting over providing proof that they are who they say they are. Theresa Knott | Taste the Korn 20:15, 28 August 2006 (UTC)

Aside from the effective (if rather silly) idea of having someone hold an "I love Wikipedia" sign, do we have any existing mechanism for verifying disputed GFDL-self claims generally? If we had a standard procedure for all such disputes, I would be less inclined to mind seeing it applied to a case like this. However, I would definitely like to avoid situations where someone, who by all appearances was working to improve the encyclopedia, gets accused of a whole host of negative motives and assaulted with a host of demands. Dragons flight 21:18, 28 August 2006 (UTC)

That is an interesting point. We should define a clear and prefered method of proving ownership GFDL images before we start requiring people to do so. I beleive most legal systems assume good faith till evidence is provided to the contrary, but that is already how wikipedia runs. HighInBC 23:27, 28 August 2006 (UTC)

[edit] Disclaimer

As I've mentioned elsewhere, I think that if (hopefully when) we formulate a new consensus policy to prevent such problems in the future, it's important that the following be made crystal clear to uploaders via some sort of disclaimer on the upload guide:

• Exactly what will trigger these stricter requirements, ie., "If your image contains sexual act x, or photographic evidence of a crime being committed, n1, n2, ..." etc., etc. Add descriptions of whatever triggers are decided upon.
• Exactly what the requirements are: "...then you will be required to also submit a photograph showing that you really are the model" or "...then you will be required to submit proof x that you own the rights to the image", etc., etc. Add whatever requirements are decided upon.

It occurs to me that if Publicgirl_uk had known people were not going to trust that she was the model, she would have been able to make a more informed decision on whether or not to upload the image. As her attitude seems to be that she resents such requirements and does not wish to comply with them, then had she been informed beforehand of such a requirement, she simply would not have uploaded, and might still be editing today.

In short: WP owes it to contributors to let them know what they're getting into. If new verification requirements are decided upon - and I hope they are - we owe it to uploaders to fully inform them before they click "submit". Kasreyn 01:57, 29 August 2006 (UTC)

If you look here[2] you will see her objection was atleast partially based on the fact that she had read the policies and did not see where she had violated any rules. She seemed respectful of wikipedia policy and I think would follow anything that the consensus agrees to or simply leave. HighInBC 03:07, 29 August 2006 (UTC)

[edit] Time to call the lawyers?

Given Wikipedia's long history with incorrect or even fraudulent copyright tagging of images and given the serious privacy concerns of pictures of this nature, I strongly support this proposal. Pictures like these deserve a higher standard of proof of a valid release. We should assume good faith but that goal is held in dynamic tension with our other obligations. The risks to the project are too great to treat these pictures the same as we treat the picture of a monument or a plant.

The challenge which no one yet has answered is "what authentication will be acceptable" to prove that the submitter is, in fact, the copyright holder. With the pseudonymous nature of Wikipedia editing, I don't have a good answer for that either. Has anyone asked one of the Foundation lawyers to look at this question yet? Rossami (talk) 04:42, 29 August 2006 (UTC)

The main foundation lawyer has been asked to look at the Publicgirluk situation. As some of us have already opined, the common carrier protections Wikipedia enjoys may entirely shield Wikipedia from any legal liability in this situation, but we have to see what Brad actually says. If so, this would more or less leave us to resolve the moral/ethical questions on our own. Dragons flight 04:53, 29 August 2006 (UTC)

My proposed question was slightly different. I was not trying to ask "is MediaWiki shielded from legal liability" (because I agree that we probably are) but was trying to ask "if we chose to accept a moral/ethical obligation, what techniques are generally considered acceptable to authenticate a user's identity and claims of copyright ownership?"

In the pre-electronic days, a signature and address was generally considered sufficient for claims of authorship of written material (books, articles, etc.) unless there was evidence that the signature had been counterfeited and which the recipient either knew or should have known of. My understanding is that pseudonym-signatures were generally not considered sufficient. With electronic media, however, counterfeiting and spoofing are far easier than they used to be and with pseudonymous editing, we arguably do not have any reliable assertion of identity at all.

So what precedents are out there? When a publisher receives a manuscript by email, what due-diligence is considered normal to confirm that the manuscript is actually owned by the sender? Thinking about it more, even that standard may be too low. The publisher may not be able to confirm the author's true identity when they first receive the manuscript but they know that they will be able to confirm the identity when they have to send the author a check. Are there any relevant precedents - perhaps from the open-source software movement - which might parallel Wikipedia's situation? Rossami (talk) 06:04, 29 August 2006 (UTC)

"Due diligence" is a legal concept. If it turns out that we have no legal obligation, then the question is really what is enough diligence to put your mind at ease. I think this page and others related to this conversation demonstrate that the community has wildly diverging opinions on what is enough. I, for one, am willing to accept Publicgirluk's actions as demonstrating good faith given the lack of countervailing evidence (which is the precedent covering nearly all actions on Wikipedia), but I know you don't regard that as enough. Apologies for not answering your question, but I think it is incumbent on people like you, who beleive good faith is not enough, to put forth a proposal on what you think would be enough. Dragons flight 15:19, 29 August 2006 (UTC)

If it turns out we have no legal obligation.... That's the trick. To determine that in advance requires a number of hypotheticals and a number of assumptions. However, setting that aside, we still have a moral obligation, one that does not depend solely upon whether we would be criminally liable or liable in civil court for defamation. (That's what I mean about this being a separate matter from copyright infringement. The chances are that this would be a civil claim, not a criminal one. In the US, there is a different standard of proof required there.) So, am I being harsh or cynical in not assuming good faith? No. The question doesn't even apply, because I have no necessary opinion on the motivations of any uploader: I have, instead, to make a judgment about whether it is good practice and demonstration of due dilligence to prevent harm on our part to accept compromising photographs of models who 1) have an expectation of privacy and 2) might experience harm by propagation of their image without proof that the models agree. Don't make the model identifiable, and we can go back to assuming good faith and accepting everything on a wink and a promise. Make the model identifiable, and it's morally (and I think legally) incumbent upon us to take whatever steps we can to assure that the model consents. In these cases alone, I want a model release. If that release is forged, we at least have been the victims and not the perpetrators of an immoral (and criminal) act. Geogre 18:26, 29 August 2006 (UTC)

See that difference in our viewpoints is that the uploader has already assured us (more than once) that she has permission and that everything is okay. From my point of view we would already be the victims if something untoward were going on. Absent some evidence to contradict those assurances, or at least call them into question, I don't believe any additional effort is neccesary. You disagree, and I doubt either of us is going to convince the other. Dragons flight 18:53, 29 August 2006 (UTC)

IANAL, but my understanding is that if Wikipedia wants to claim common carrier status (which I feel would be difficult) it should be deleting nothing on grounds of censorship except in response to legal action. A few years ago Compuserve in Germany were successfully prosecuted for carrying child pornography, whereas a Usenet provider can carry such material with impunity. The rationale was that Compuserve was moderated, and thereby undertook to censor their site. If this censorship failed, they were liable. Usenet providers on the other hand don't censor anything except through a court order, and can rightly claim to be common carriers. The Foundation lawyers really need to get on top of this and come up with a clear statement - is Wikipedia a common carrier, a publisher, or something else? --kingboyk 09:08, 29 August 2006 (UTC)

Since admins (in general) are neither appointed nor employed by the Foundation, their actions are not legally relevant to determining common carrier status. (By contrast, Compuserve employed a number of forum moderators.) Essentially, only OFFICE level actions have a bearing on whether or not Wikipedia qualifies as a common carrier. Though it has never been tested (to my knowledge), relying on common carrier protections has always been an intention of the Foundation. Dragons flight 14:58, 29 August 2006 (UTC)

I know you're right that the finding was the CompuServe employed the moderators, but the question is still open whether the paying of the moderators was merely a nail in the coffin or the sole proof that CompuServe was complicit. I hope we don't ever test this principle in US court, as things in the US have recently been pretty depressing in this regard. The fact remains that our structures at least make the issue extremely cloudy, and it's further complicated by the unclear connection between Foundation and project (e.g. that the Foundation arises from the project more than the project from the Foundation). We really don't want to be the test beds if we don't have to be, and most of us are arguing that we don't have to be and don't need to even get this tempting. This is in addition to the fact that the harms we're talking about here are of a different sort than intellectual property and that this might well change the venue and type of challenge we would face. Geogre 15:18, 29 August 2006 (UTC)

I agree, of course, with Rossami and think he said it very well, and I also agree with Kingboyk that we are "moderated." We ourselves, the administrators, would be proof of that by itself. The fact that we reject for non-encyclopedic would make us thus, and Rossami is saying, as I have been, that it is something horrendous to carry identifiable models without serious proof that they agree to it. We are different from other sites on the web, in that we are non-commercial and have selection criteria. What we in this case are doing is merely saying, "Among the selection criteria for images, add this." Geogre 11:30, 29 August 2006 (UTC)

If no legal problem is found then no objection on those grounsd should be used against any content. As for a picture of a person that compromises them, then yes I think we should take it down once a complaint has been received even if we are not legally obligated to do so.

I do not think we should filter new images with new guidelines based on the potential danger of offending somebody. If we assume good faith that subject of the image consents to it's publication(barring images where the subject does not appear willing or aware of the photography) we are on good moral and legal grounds until some sort of complaint is made. HighInBC 13:46, 29 August 2006 (UTC)

Possible dangers of your proposal: a non-consenting woman's private photos might have been uploaded and may be used against her in the future; we may be violating somebody's copyright and may catch flak for it in the future; we will become known as a de facto host of all sorts of salacious unfree content whose rightful owners either aren't aware or aren't motivated enough to complain about it (immediately, anyway).

Possible benefits of your proposal: no Wikipedia reader will ever again have to use their imagination and/or favorite search engine to know what it looks like when a man ejaculates across a woman's collarbone.

As you might guess I don't feel that the "benefits" are morally worth the "dangers". I have no problem carrying such images just based on their content, but I find it very reasonable that we give certain types of images increased scrutiny with regards to the license they carry and the uploader. — GT 22:17, 29 August 2006 (UTC)

[edit] Exemplar of the need for model releases

The publicgirluk incident continues to be an instructive example of why we need some policy in this arena besides "Let's just ignore the problem and trust the statements of pseudonymous users (including myself)." As part of leaving the project, she indicates that she has "withdrawn permission" for the photos that she formerly claimed were licensed under the GFDL. Consequently, many editors on the DRV page now believe the photos should be kept deleted.

Now, obviously, this is nonsensical. In terms of the copyright issue — completely separate from the model release issue we're talking about here — either she had copyright in the photos and validly licensed them under the GFDL, in which case she couldn't "take them back," or she didn't, in which case the license wasn't valid in the first place. But let's set that aside for now. For the rest of the discussion, I'm going to assume that the person uploading the pictures in question is unquestionably the copyright holder.

The more pressing issue is: we have a picture of some identifiable person in an image. The copyright holder assures us "verbally" that the model has given permission. Let's even assume that he or she has. Later, the model changes his or her mind and "withdraws" permission. We are left holding the bag. The point of a model release is to provide peace of mind that, at one point, there was a contract in place where permission to use an identifiable image was given. In most civil suits in the US, questions of liability come down to what's called an objective standard, or the reasonable person principle. That is, not "did the defendent believe they were acting correctly," but "would a reasonable actor have acted in the way the defendant acted, or believed what he believed?"

I have a hard time accepting the idea that a reasonable person believes the statement "Oh, yeah, and the model told me it was OK to redistribute this photo, forever," based on nothing more than the assertion of a pseudonymous copyright holder. It's unquestionable, however, that reasonable people do believe model releases, because they are widely used around the world. This question doesn't come up in the case of pseudonymous contributions of text, because text, generally, is not identifiable in the same way as a person's face. For that reason, I think "just assume good faith" isn't an acceptable policy -- above and beyond the legal issues, it's simply not reasonable behavior.

I'm open to suggestions that are somewhere between "scan of signed model release" and "accepting the word of pseudonymous contributors at face value." But I haven't seen one yet. Does anyone have any constructive ideas? Nandesuka 15:07, 30 August 2006 (UTC)

Well said. Obviously, we need to be stricter than accepting any pseudonymous contributors' claims regarding all images. Personally I don't care about Wikipedia users' images of themselves on their user page or the Wikipedia:Facebook, but I suspect there'd be a huge uproar of userbox-wars scale if a new policy or ambitious admin simply banned all images with identifiable people, lacking model release forms.
This is largely a privacy, not copyright, issue. In the US and many other countries it is illegal to publish a non-public image without consent of the photographed individual(s). For example, if a Papparazi uses a zoom lens or reaches over a fence to take a picture of a celebrity sunbathing in her backyard, that photo cannot be legally published (prong 1 of US privacy laws: "unreasonable intrusion upon seclusion"). I propose that images of identifiable individuals in non-public settings require model release forms. The other 3 prongs which are also relevant: 2) unreasonable revelation of private facts, 3) unreasonably placing another person in a false light before public, and 4) misappropriation of a person's name or likeness. The Publicgirluk images may also have violated (2), (3), and (4) if we do not assume the user who uploaded the images is the photographed individual. A good summary of US laws with example situations (pdf): [3]. As far as Wikipedia being a common carrier and liability falling on the contributor... I think we have to do some due diligence. As far as 18 USC 2257, it might be better easiest if we avoided all images that would fall under that law, not sure if it's worth the trouble. —Quarl ^(talk) 2006-08-30 19:52Z

I've added a section on verification of permission. If anyone has any ideas please just add them to the page (it's a scratchpad after all - we can remove them later if they turn out to be stupid) Theresa Knott | Taste the Korn 16:31, 31 August 2006 (UTC)

I concur with Nandesuka and Quarl, although there are quibbles here and there (there is an exception with celebrities that sometimes goes one way, sometimes another, because they're "public figures" and therefore abridge their expectations of privacy). The NYT Sunday Magazine had a cover showing an African American man who was simply walking down the street, and the headline was about whether or not Black men were moving into "white" neighborhoods. (The magazine was sympathetic, of course, to the minorities and meant no harm.) The individual was startled to find himself a Black man taking over white neighborhoods and sued. He lost, because, being in public, he had no control over his image. That's a quibble, though.

In general, Quarl and Nandesuka are correct in zeroing in on the moral and privacy issues, and particularly the reluctant model. What do we do in a Tracy Lords case? When the model changes her mind (or is capable of expressing her intentions without coercion or poverty), are we to dwell with the slime and say, "Your boyfriend gave us copyright permissions?" A model release form is essential. Having that form filed with the Foundation and not on the wiki is fine. There is no reason for it to betray a person's identity or publically identify the name with the face. We would at the very least need a scanned form from the real name copyright holder assuring us that the photo was taken with the model's consent. Even then, I would be reluctant.

A side issue in Publicgirluk is that a Google groups search indicates such a screen name active in sex-related discussion areas in the UK. That doesn't mean that the model is the account holder or that the account holder is a pornographer. It doesn't mean anything, one way or the other. Geogre 18:39, 31 August 2006 (UTC)

The model release form would be a very good way to ensure WP's understanding of what exactly it's hosting and what risks it's taking on. But are you proposing that for all images of people, or only copyrighted images, or only images of a sexually explicit or possibly illegal nature, or some combination of these factors? Ie., what trigger would you suggest? Kasreyn 22:21, 31 August 2006 (UTC)

See the policy page for a list of Geogre's triggers. It's for sexually explicit, illegal or otherwise compromising pictures, where the model is identifiable and where they would havwe reason to assume that the photo would remain private. Theresa Knott | Taste the Korn 22:27, 31 August 2006 (UTC)

Are we sticking to American standards of "sexually explicit" (the servers being in America), or attempting something more global? Because there are many cultures with less permissive attitudes than America; in some Islamic cultures, a woman's ankles are considered inappropriate for public view, and there might be a reasonable expectation that photos including bared ankles would remain private. I know, I know, "use common sense" - but common to who? Would "sexually explicit" and "compromising" be for the editors of the article in question to decide, or for any admin who's watching image uploads, or what?

I mean, I agree with the idea of those triggers, but I'm worried about how to implement them without some sort of lowest-common-denominator effect ocurring. Kasreyn 00:05, 1 September 2006 (UTC)

Fair enough, but the common sense I would apply here is to say that, despite English becoming the lingua franca of the world, the .en Wikipedia is primarily concerned with the anglophone world, and therefore the anglophone nations. Of course it's possible to see a navel as explicit, but I think, if we had to hash this out entirely, I think we can agree that the intent is not to avoid Puritanical concerns but to avoid personal and professional harm coming to the model. Therefore, if the model is an Islamic woman living in the Netherlands, she might well get killed for showing that navel, while an American ex-pat in Jordan might get no worries at all from being bare breasted. The point is, as Theresea has said, our real concern here is not with prudery but protection of models, protection from harassment and embarassment. When we don't know the nationality of the pictured model holding up a carrot, we don't inquire. When we don't know the nationality of the woman fellating an artificial penis, we do. Again, it's not that hard to tell when something might need a higher standard and when it wouldn't, not in actual cases. Geogre 16:09, 1 September 2006 (UTC)

[edit] IANAL, but

I would like someone to explain something to me, as I remain very confused by all the talk of "common carriers" etc. (The jargon is new to me.) I understand that when an organization undertakes to (at least partially) censor its material, it takes on greater risk of being legally expected to (for lack of a better term), and thus liable for its content. I had long been under the impression that this was why WP had the "not censored" provision under WP:NOT; not as some sort of anarchist "information wants to be free" idealism, but out of a seemingly hard-nosed understanding of the dangers of attempting the monumental task of self-censorship.

So, in the current situation - that is, without this new policy we are working on - if someone came forward and claimed an image on WP was used to slander or attack them, what sort of deniability or legal protection would WP have? I have been informed that my questions are merely "rehashing" previous debate, and that's certainly possible - there's a great deal of the AN/I board discussion I did not have a chance to read before it scrolled off. If that's the case, I apologize but a reiteration would be helpful.

I can see that, if worst came to worst, the recent debacle could be glossed over on copyright grounds. (That is, we can claim that we rejected the images because we could not be certain the uploader held the rights to them - even though we accept a great many pictures with milder content, but equally shaky copyright grounds.) So I don't worry that this sets some sort of precedent on self-censorship. (Unless I've misread this?)

Also, did anyone "call the lawyers" as was suggested in a section above? If so, what did they say? There's little point in crafting a policy if it's just going to get shot down as unworkable. Kasreyn 22:14, 31 August 2006 (UTC)

I said it before but I'll say it again. This policy is not being drafted in order to prevwent Wikipedia from getting sued. It's being drafted to prevent (as far as possible) people having compromising photographs of them put on wikipedia against thier will. Let's not be a bunch of chickens here. Let's do our best to do the right thing morally, and let the lawyers worry about the legal side of things. Theresa Knott | Taste the Korn 22:20, 31 August 2006 (UTC)

Of course, those of us who believe we ought to edit with dispassion vis-à-vis our subjects and disinterest vis-à-vis the external consequences of our editing (where legal concerns do not entail), viz., as soulless...automatons, are a bit concerned by our going any further here than is necessary reasonably to indemnify the Foundation. I fail, I suppose, to understand why, where an image that would serve to illustrate an article (and, thus, in view of encyclopedic principles, to improve the project), we should be at all concerned as to its provenance or as to the harm that might befall its subject (in view of his/her having had that which he/she thought to be private disseminated publicly)? Joe 22:46, 31 August 2006 (UTC)

It is known as "conscience" and "consideration for others" to avoid what could cause considerable distress to someone, as has happened with other material not intended for wider dissemination, which has brought on psychological problems for the subject. It is to create an ethically-based encyclopedia. Tyrenius 02:56, 13 September 2006 (UTC)

[edit] Image-based confirmation of GFDL

Tyrenius just changed the "image release" suggestion from an I-love-wiki sign to an I-release-under-GFDL sign. That's a great idea. We will still have to check that the sign wasn't added as an obvious photoshop but that's not really different than a traditional publisher's obligation to check for obvious forgeries. We don't have to be forensic experts but we should still act on blatent attempts. I think that's a very workable solution as our variation on a model-release form. Rossami (talk) 13:25, 13 September 2006 (UTC)

I suggested the following which was removed:

The same setting should be used if possible, as well as any other identifying material.

The point of this was that people can sometimes look very different in different photos and the setting helps to confirm identity. Another point does occur which is any necessary permission when a photo is taken on private property? Tyrenius 17:33, 14 September 2006 (UTC)

Per your first point, about people looking different in different setting, I suppose, but it seems like a real potential hassle for the person. As for permission for private property, I think assume good faith still applies. It seems like policy creep to me, if the model cannot be identified from the image then it does not pass, common sense and consensus will deal with that. HighInBC 22:45, 14 September 2006 (UTC)

Tyrenius: I agree completely with your rewrite, but I note that the requirement of having the same setting might not be possible. For instance, an image might have been taken while on vacation, etc., and it might not be possible to replicate the setting. The same with identifying materials, which may have been lost in the interim. Let's just include those as optionals which an uploader can include as additional proof, but not as concrete requirements, OK? Cheers, Kasreyn 04:34, 15 September 2006 (UTC)

Also agree that same setting is not necessary. I'm not in any event convinced this policy requirement is a good thing. It seems to me to be potentially humiliating and just making an unnecessary barrier and as far as I am aware the Foundation lawyers haven't recommended we do any of this have they? JoshuaZ 04:40, 15 September 2006 (UTC)

I mentioned liability to, IIRC, Theresa Knott, and she informed me that the entire affair arises more from ethical considerations than legal ones. That is, we have a responsibility to ensure that WP is not used to attack or defame anyone by publishing compromising photos without their consent, even if such publication isn't actionable or acted on. To my knowledge no one has contacted the WMF lawyers over this at all. I would tend to personally agree with you that such a requirement would tend to have a chilling effect on the uploading of more esoteric and rare images that are hard to come by. Of course, by looking at such articles as Nudity, it's clear that there's a lot we can do using public domain artwork and images of unidentifiable models (usually cropped at the neck). So the question is how to balance WP's need (if any) for potentially compromising images of identifiable models, with ethical protection of those models. Kasreyn 05:03, 15 September 2006 (UTC)

P.S. in the case of PGUK, the identifiability issue seems to have been unavoidable. I can't imagine a way to have a photo of a facial without showing the face, which is identifiable. Perhaps a better idea for that article, if it really needs an image, would be an illustration. Kasreyn 05:06, 15 September 2006 (UTC)

P.P.S. It just occurred to me that cropped images might not work either. Don't certain image licenses require us to provide access to the original image if we modify it? The original would not appear on whatever article the cropped version was intended for, but it wouldn't be difficult for a WP editor to find. Is that a risk we can take, or would we have to avoid those licenses or get cropped "originals"? Kasreyn 05:13, 15 September 2006 (UTC)

Tyrenius' original wording was should be used if possible. That's a request, not a requirement. I'm okay with adding it back. It adds confirming evidence but is worded in a way that does not impose an undue burden on the uploader. Rossami (talk) 13:19, 15 September 2006 (UTC)

[edit] I found some old similiar discussions

Perhaps these will provide some information:

Wikipedia:Image censorship and Wikipedia:Graphic and potentially disturbing images.

I know that they cover different ground, but there is significant overlap. Both process and standards are discussed, and it seems rather lively. Good reading. HighInBC 20:02, 16 September 2006 (UTC)

[edit] Another issue: possibly defamatory descriptions?

There are a few examples of images that have descriptions that, true or not, might be considered defamatory by the model. For instance, Image:Stripper04.jpg (shown at Striptease), describes the identifiable model as a stripper, and Image:0405.Annabell 002.jpg, an identifiable model captioned "a sex worker", shown at Prostitution. In each case, we have the uploader's assurance that the model really is what she is described as. In the latter case, I'm not 100% certain, but the model looks like she might be the same person as the Wikimedia editor who first uploaded the images (based on the self-pics on her userpage; might just be a strong resemblance though). (A German speaker might be able to find out for certain where I can't.)

So, we've spent all this time worrying about putative unknown woman x suddenly discovering her semen-festooned face on Wikipedia for all the world to see, but not at all about unknown woman y, who may be startled to see that the photo her boyfriend took of her in scanty clothing and sultry expression, has been put on display online with a caption describing her as a prostitute or stripper. Sure, it's not as compromising as PGUK's images, but who are we to say that that woman will be harmed less than woman x it is hypothesized PGUK was uploading the photos of? Because what we are really doing is altruistically making a sort of guess at what things models might be offended by seeing themselves depicted doing. Ie., we can be relatively certain that most women would be offended by having pictures of themselves, nude with semen on their face, put on the internet without their consent. And we can be relatively certain that most women would not take offense at having pictures of themselves fully clothed walking down a busy street, put on the internet without their consent. Expectation of privacy (which varies from country to country) plays a role, but so does good judgment: which things are we going to guess would be offensive or compromising to models, and which will we guess are not? Because unless we talk to the model, we can't know.

I'm not bringing this up in an attempt to get these images removed, or to start any fights over acceptability of any kind of content. The can of worms on identifiable models has already been opened; I'm just trying to figure out what the can's volume is. Policies should have definite guidelines to guarantee fairness, and that means we need to determine standards for when to put these identification barriers in place. I just fear that our patience with the large workload involved is not going to be sufficient to maintain interest in protecting unknown, anonymous models at all times. I would prefer a modest policy well enforced to an overly ambitious policy which is only enforced when someone can spare extra time for it. Kasreyn 06:55, 18 September 2006 (UTC)

Some women would be very upset to see a picture of thier face or forearm being on the internet. Whereas other don't mind showing their genitals. There seems to be alot of guessing on what a comprimising picture is, and it seems to be based on regional standards. That is why this policy has a long way to go before I support it, if ever.

I do see the need, but it does not seem simple to nail down. What about a picture of a person eating pork, what if they are jewish? What about an image of a politian who was caught in a scandal, the picture may be all over the news and public domain, but it may offend him, should we remove this aswell?

I wish we just stuck to legal and encyclopedic standards. HighInBC 14:55, 18 September 2006 (UTC)

[edit] Counter proposal

Following a number of off wiki discussions, including with Jimbo, I have drafted a counter proposal that tries to balance the need to protect others with concerns of not being mean and capricious in how we treat uploaders. It is both broader, and in some ways narrower, than the current proposal outlined at these pages.

Wikipedia:Verifying unusual image licenses

Jimbo, in his capacity as intelligent contributor (and not dictator), has said that an approach like I have outlined at that page would be acceptable to him (though it is by no means the only possible solution). It still relies on trust to a significant degree, but provides a margin of comfort beyond what would be received merely from an psuedononymous Wikipedian. Dragons flight 04:18, 20 September 2006 (UTC)

Wikipedia:Verifying unusual image licenses is by far the best policy proposal I have yet seen to deal with these issues. I would vote yes for it as is, but perhaps others have improvements. WAS 4.250 12:44, 20 September 2006 (UTC)

I support Wikipedia:Verifying unusual image licenses, as it remains general and trusts in consensus to determine if specifics meet general criteria. It needs some tweaking, but looks like it could work. HighInBC 20:21, 20 September 2006 (UTC)

It looks good as far as it goes, but it seems to only cover uploaders and license-holders, and specifically from a legalistic point of view. That's fine, and it will work well, but as Theresa Knott explained so patiently to me, legal liability is not the motivation behind the drive to create this policy, and so the one you've linked isn't actually a counter proposal so much as it is a complementary proposal. Most importantly, it does not include mention of any mechanism for discovering whether the model - not whoever owns the image, which may be someone else altogether - is OK with the image being uploaded. It's a good policy, but it doesn't deal with the "ex-boyfriend's revenge" scenario which is a core part of the reason behind developing this policy. Kasreyn 01:09, 23 September 2006 (UTC)

Has there been a problem with ex-boyfriends posting pictures here? If not, then this seems like a solution in search of a problem. HighInBC 04:57, 23 September 2006 (UTC)

It is better to pre-empt this on wiki, rather than wait for it to happen, which it will one day, as it has occurred elsewhere on the web. Tyrenius 13:36, 23 September 2006 (UTC)

Perhaps an essay or mabye even a guideline, but a pre-emptive policy seems like policy creep to me. Where do we draw the line? Say the angry ex-boyfriend owns the rights to publish the images legitimatly, do we still respect the girls wishes? What if instead of her boyfriend it is a publisher that is posting the against her current wishes(but well within his rights).

It is for these many little problems that we have consensus. WP:CIVILITY seems to cover any action that involves doing something not nice, including posting images of an ex. That coupled with what is put forth in Wikipedia:Verifying unusual image licenses seems to give wikipedians all the policy they need to deal with such a potential problem, case by case. HighInBC 14:02, 23 September 2006 (UTC)

[edit] message inappropriately posted to main article

[edit] Only correct a problem when there is a problem

Why are identifiable models a problem? Has wikipedia so far had any complaints at all about identifiable models from anybody? Why don't we wait until there is a problem first and then do the minimum possible to fix it. I see no reason for any policy at all. The wikipedia thrives because it is completely open and offers minimal constraints. As the wikipedia get older its rules are increasing, becoming more byzantine, complicated and it is becoming less open. This policy is completely unnecessary. Nobody at all has demonstrated a need for it.

We shouldn't try to anticipate problems. Wait for problems to occur and then do the minimal amount possible to fix them. This results in the greatest openness because it requires the fewest constraints and arbitrary rules.

—The preceding unsigned comment was added by 70.49.223.200 (talk • contribs).