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author｜chen bi

professor at china university of political science and law

not long ago, shijiazhuang’s “b&b secret photography” incident attracted attention, and three suspects who installed pinhole cameras were detained. “b&bs turned into tertiary film sets, private videos went viral: every bed could be a live broadcast!” although this statement is somewhat exaggerated, people on business trips and trips have become anxious and are forced to turn into intelligence people went around checking the cameras in the room. if you find it, it's a "horror movie"; if you can't find it, it's also a "suspense movie."

such a serious lack of security will inevitably involve legal issues. so, how does the law regulate the frequent voyeuristic use of pinhole cameras? why are such illegal filming incidents so rampant? can the law effectively curb online sexual exploitation? these issues discussed in this article hope to trigger public thinking.

what are the legal responsibilities of secretly photographing people and hotels?

the candid photography discussed in this article refers to secretly filming other people’s behavior or body parts against their will. this kind of filming invades other people's privacy and violates social morality, and should be negatively evaluated.

in the current legal system, the protection of privacy rights is divided into three levels: civil tort liability, administrative penalties, and criminal penalties.

according to the "police information bulletin" of the aforementioned case, the three suspects took advantage of their accommodation to secretly install online shopping monitoring equipment in the guest room to make illegal profits. in practice, these guests often change rooms for various reasons, and it only takes ten minutes each time to install the camera.

generally speaking, there are at least 20 positions that can be installed in a room, but the hotel's own cleaning staff do not have the technology and time to find cameras in every room. therefore, those guests who were unlucky enough to stay in the tricked rooms became the targets of being secretly photographed or even broadcast live.

from the perspective of civil liability, most of the infringements of candid photography are personal privacy and sexual privacy, which obviously constitutes infringement. the victim has the right to demand that the infringer of candid filming bear compensation liability. the dissemination of secretly photographed videos will cause a wider range of harm, and this type of behavior is an aggravating circumstance of privacy infringement.

if the hotel involved fails to fulfill its safety guarantee obligations, it will be jointly and severally liable for tort or breach of contract.

in this case, the hotel may feel that it is wronged and "it is also a victim." however, from the perspective of travelers who regard hotels as private places and have reasonable expectations for privacy, the law should also impose certain duties of care on specific places such as hotels and b&bs to strengthen the awareness of the protection of personal privacy rights.

in addition to hotels, in some public places, such as restrooms, subways, and shopping mall escalators, women's private parts may also be secretly photographed with mobile phones.

in such cases, in addition to pursuing civil liability, administrative liability can also be pursued.

according to article 42 of the public security administration punishment law, anyone who peeps, secretly photographs, eavesdrops, or spreads other people's privacy shall be detained for not more than 5 days or fined not more than 500 yuan; if the circumstances are serious, he shall be detained for not less than 5 days but not more than 10 days, and may be concurrently detained. a fine of not more than 500 yuan will be imposed. in practice, if the video taken is not disseminated or sold, the police will generally impose security penalties on the person who secretly filmed the video.

hidden photography may also involve multiple criminal law crimes. if the perpetrator illegally uses candid photography equipment to spy on the privacy of others without selling or distributing it, and if the relevant equipment is identified as a special equipment for eavesdropping or taking photos, and serious consequences are caused, he shall be held criminally responsible for the crime of illegal use of special equipment for eavesdropping or taking photos.

in the above-mentioned "police information report", the shijiazhuang police filed a case against three suspects for suspected illegal use of special equipment for eavesdropping and photograph stealing.

if the perpetrator sells or disseminates the secretly photographed content, he should be held criminally responsible for crimes with heavier penalties.

for example, for the purpose of making profit, secretly filming other people's sexual behavior and making it into a video file, and making it public through selling and dissemination, not only violates the privacy of others, but also has the objective attribute of depicting sexual behavior and promoting pornography after the secret video is made public, which is in compliance with the criminal law 》regarding the provisions of "obscene materials", if a crime is constituted, criminal liability shall be investigated for the crime of making, selling, and disseminating obscene materials for profit.

if a surreptitious photographer insults the victim by disclosing the victim's private photos or videos, he should be held criminally responsible for the crime of insult. if the perpetrator aims to illegally possess other people's property, obtains other people's privacy through secret photography, and then blackmails others and obtains property, which constitutes a crime, he should be held criminally responsible for extortion.

why is the phenomenon of secret photography rampant in hotels?

hidden photography involves so many crimes, and the criminal law has not dealt with it lightly, but why is it still rampant? of course it's because of profit.

the candid photography market has a scale of hundreds of billions every year. the producers, sellers, candid photographers, video exchangers, linking websites and publishing websites supported by it form a black industry chain with division of labor and collaboration.

simply put, the installer just needs to cast a net and lay a trap. the terminal's website or app only needs to have a few thousand users, and each user buys the viewing rights of several cameras, and the operator will have a stable income of several million a year.

and individual videos are easier to monetize. a film with clear images and clear dialogue can be priced at dozens of dollars and can be sold multiple times on the platform.

however, preventing and combating illegal candid photography is difficult. because it is easy to install a camera, but it is more difficult to find it. hotel and b&b employees don’t have the technology or time to search for cameras in the house, and even if they find them, there are always fish that will slip through the net. some unscrupulous merchants have even begun to "produce and sell their own products" and install cameras in business rooms. once discovered by guests who check in, they can blame the previous guests. this is really hard to guard against.

to take a step back, even if you find the camera, crack the password of the camera, and then find the address of the server where the camera uploads, but that server may be abroad, what is the use? even if the person who installed the camera is caught, the mastermind behind the scenes cannot be caught, and the real lifeblood of the criminal industry cannot be touched.

in response to the above-mentioned crux, from may to august 2021, relevant departments in our country organized a nationwide centralized management of camera voyeurism and black products, requiring social software, websites, and forums to comprehensively clean up the camera cracking tutorials and vulnerability risk exploitation posted on the platform. , selling cracking tools, modifying voyeuristic equipment, trading voyeuristic videos, and other illegal and harmful information related to black products through cameras.

in addition, e-commerce platforms are also required to conduct comprehensive investigations, clean up and remove fake and shoddy cameras from the platforms.

in addition to continuing to control the candid photography side, the police have also stepped up their crackdown on the consumer side. compressing the profit margin and increasing the risk of onlookers can also achieve a high-pressure situation for candid photography.

how to protect people’s privacy rights while traveling?

the aforementioned candid photography can be called a kind of digital sexual exploitation. there are many types of digital sexual exploitation crimes, including sexual exploitation images, illegal candid photos, illegal composite images, etc.

the room n incident was a digital sexual exploitation case that shocked the world. it was through it that people realized:netizens who click to watch are not only the direct recipients of minors' sexual exploitation materials, but also the indirect perpetrators of online sexual exploitation. the demand for viewing and financial support are important reasons for the repeated prohibition of online sexual exploitation crimes.

similarly, in the case of illegal secret photography, some netizens believe that watching the live broadcast content of the camera is not an illegal crime, or blame the victim, believing that the victim was secretly filmed because he neglected to take precautions and did it voluntarily. these misunderstandings can reduce the perpetrators' sense of guilt and enable them to participate in crimes with greater peace of mind.

the demand for viewing and willingness to pay are precisely the reasons why illegal candid photography is rampant. "both production and sales are booming" means that both "production" and "sales" must be attacked.therefore, cracking down on the consumer side is one of the effective methods to control illegal candid photography.

classification and rectification will be carried out based on the subjective criminal intent and objective results of the audience's participation in watching: as far as ordinary viewers are concerned, if they do not objectively promote the further development of the crime, they can only be criticized and educated; for viewers who copy or possess obscene and pornographic information, public security penalties should be imposed in accordance with article 68 of the "public security management punishment law"; viewers who paid to watch, customized to watch, or served as administrators of relevant platforms or groups still provided financial support to the perpetrators even though they knew that illegal filming was taking place. support and management assistance, this behavior objectively promotes criminal behavior, and should be investigated for criminal responsibility depending on the circumstances.

the aforementioned “b&b secret photography” incident in shijiazhuang has once again raised the public’s awareness of privacy protection.

the police emphasized in the "police information bulletin" that "citizens' personal privacy is inviolable," which is commendable.

in addition to the above-mentioned accountability mechanism, the police should also encourage the public to actively report candid photography, establish a convenient reporting mechanism for candid photography, and protect the privacy and rights of reporters. at the same time, relevant regulatory authorities should regularly conduct privacy protection inspections on hotels and other accommodation places. this specific measure can deter camera installers, and can also improve the privacy and security of travelers and workers away from home.

this article discussespeople’s right to privacy while traveling. although in the era of big data, individuals who want to protect their privacy are destined to be a desperate war. each one of us seems to be naked, with no secrets left. even if we are gradually transferring this right, the right to privacy is changing its connotation and denotation, and the illegal secret photography discussed in this article is also intolerable.

for ordinary people, in the face of today's candid camera equipment, the anti-candid camera methods taught online have long been ineffective. it is also impossible for most people to carry sniffers and anti-candid camera detectors on business trips. therefore, the law needs to take action to control the phenomenon of candid photography so that people can travel and do business with confidence, otherwise we will all be anxious about "the truman show."

in the follow-up report on the shijiazhuang "b&b secret photography" incident, i look forward to seeing the police continue to dig deeper into the criminal industry chain behind it, and to see the prosecutor's recommendation to improve the safety standards of the entire hotel industry. this is the justice response that the case deserves.

"the utopia of the rule of law" was co-sponsored by teachers from china university of political science and law chen bi, zhao hong, li hongbo and luo xiang. it is a specially commissioned original column by the comment department of ifeng.com.

editor-in-chief | xiao yi