“Upskirting” is the practice of taking a picture up the skirt or dress of a female and is sometimes part of a programme of harassment by the person taking the picture, but can often occur without the victim ever being aware.
Recent media coverage of this issue has once again shown how technology and the misuse of technology is well ahead of the law.
Reports have suggested that this practice is widespread with reports of pictures being taken at bus stops, on the tube, at festivals and at schools. There are even websites dedicated to the publication of the pictures taken.
One difficulty in the tackling of the issue is that the law has not caught up with this practice except in Scotland where there is legislation. Prosecutions are difficult as the pictures are often taken in a public place making “voyeurism” difficult to prove and with no attempted contact with the victim other more serious prosecutions are impossible.
Legislation exists outlawing the taking of “upskirt” photographs in Australia, New Zealand and parts of the United States as well as in Scotland but not in Northern Ireland, England or Wales.
This practice has possibly not been taken as seriously as it should leading to it being seen as a mischief and not the gross abuse of privacy it really is. The victim can feel violated and the potential detriment to them in their confidence and mental health is significant.
The problem for employers has been highlighted in a school in Northern Ireland where a pupil took inappropriate images of teaching staff. These were discovered and the pupil was temporarily suspended. The Public Prosecution Service was involved but no prosecution was directed. The pupil was subsequently allowed to return to the school but staff are refusing to teach him. There is an on going issue around the teaching of the pupil as a result.
There has not been much reporting of the hurt, embarrassment and insult to the staff members or to what, if any, counselling and support has been offered or requested.
This raises further questions about the duty of care employers have to their staff and concerns about how they could even investigate such a claim if the smart phone belongs to a staff member and is not a work phone. Can they access it? If they initiate disciplinary proceedings and the pictures (if they existed) are destroyed how do they proceed? Will they hinder formal investigations?
Once again, the creation of good policies is essential directing the use of phones or other devices in the workplace and ensuring that consideration is given to how such allegations will be investigated before they arise. Preparation for supporting anyone who is the victim of this should also be provided.
Written by Ciara McReynolds, solicitor at BLM