The Scarlet Letter | Season 2 | Episode 4 | Jessica Lake
Stolen faces, revenge porn, and robot clones – the kind of stuff horror movies are made of. In this episode, Dr Jessica Lake takes the stage and shares the history of women fighting for privacy rights, the strange loopholes in today’s laws, and the creepy rise of robots that look a little too human. Jessica shares how growing up with feminist historian Marilyn Lake shaped her worldview, and how a passion for justice and new technologies led her from film studies to law. She shares how feminism, technology, and the law collide in weird and powerful ways.
First published 2017.
The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.
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Transcript | The Scarlet Letter | Season 2 | Episode 4 | Jessica Lake
Tamara Wilkinson: [00:00:00] Good morning. I'm Tamara Wilkinson, and welcome to this episode of the Scarlet Letter, the monthly podcast of the Feminist Legal Studies Group at Monash University's faculty of law. Today I'm joined by Jessica Lake, who is a lecturer in law at Swinburne Law School, and recently returned from a postdoctoral fellowship at Amherst College in the United States, where she was the Carl Lowenstein Fellow in Political Science and Jurisprudence.
Jessica teaches in the areas of privacy law, media law, and contract law. Jessica, thank you so much for joining us today.
Jessica Lake: Thank you for having me, Tamara. It's great to be here.
Tamara Wilkinson: Excellent. Jessica, you wrote your PhD on the women who forged a common law right to privacy in the US in the late 19th and early 20th centuries.
Jessica Lake: That's right.
Tamara Wilkinson: That is so interesting. Would you have considered yourself [00:01:00] a feminist before you settled on that PhD topic?
Jessica Lake: Yes, absolutely.
Tamara Wilkinson: And how did you where did feminism start for you?
Jessica Lake: I guess it's It started very early because my mother, Marilyn Lake, is a historian and she, amongst many other things she's written wrote the history of feminism in Australia, for example.
So she's a feminist scholar herself. That's amazing. So growing up as a child I just took for granted, I guess you could say, I took women's perspectives and experiences and way of moving through the world into kind of narratives and institutions was just life in a sense. I wouldn't have, as a child identified as a feminist, I would have just thought that everybody was a feminist in that sense.
And then I guess as a teenager, I probably started to think of myself as a feminist. And that was in the 1990s. So it was a [00:02:00] time when there was starting to become an increasing backlash against feminism. And it was quite interesting to see for myself, this kind of collision between my experience of feminism and feminists, which was through.
My parents and their friends. Yeah, who seemed like such and a passionate joyful dedicated, funny people with this kind of figure of the feminists being produced in media and other commentary as being, stern and humorless and angry and all these kinds of things that I just thought, what?
This makes no sense. Yeah. But it was at that point that I realized that feminism was controversial.
Tamara Wilkinson: Yeah.
Jessica Lake: And that saying that you were a feminist was taking a position which put you in a box in some people's minds.
Tamara Wilkinson: Yeah. Yeah. It's always really confronting when you [00:03:00] experience that for the first time.
Yeah. It's upsetting because, as you said, like often you just think of it as the way the world is. Yeah, exactly. And then you realize that people are forming opinions about you based on the fact that you're a feminist. Yeah. Yeah.
Jessica Lake: Yeah, absolutely. And I think as a teenager, it's a social risk of sorts because you do get seen in a particular way.
And I was in secondary school, was at a private girl's school in Melbourne, which was quite in some ways, of course, they always encourage everybody to succeed and reach their potential, but in other ways, they're very socially conservative. Yes. And so that you were a feminist was, yeah, a social risk of sorts.
But yeah, one worthy of taking.
Tamara Wilkinson: And so it would have been really great for you going through your law degree, having this already having this feminist perspective. Cause I know for myself, that was something I didn't. develop, that critical way of looking things, looking at things, until the later years of my law degree, and I wish I could go [00:04:00] back and do it again with that feminist lens.
Jessica Lake: Yeah, what I brought, when I went to school, beginning university, all I really had was a kind of raw sense of how the world should be. Yeah. It was, I hadn't, I didn't really know anything in terms of feminism, but I just had a sense of what was fair and what was just and that it was worthwhile kind of interrogating and analyzing from the perspective of, women's experiences.
Yeah. And but I didn't know anything. So it took actually going to university and doing feminist legal studies in my undergrad law degree and also in history and in film studies, which I did in my arts part of my degree doing kind of feminist work there to actually start getting a handle on the theory and the history and the uses.
Tamara Wilkinson: Yeah. Yeah. That's really, yeah. That's really awesome. So you've published your PhD as a book, The Face that Launched a Thousand Lawsuits, Yale University Press in 2016. Well done. So can you tell us a little bit [00:05:00] about what the topic of your book and your PhD was?
Jessica Lake: Sure. So I did my PhD I couldn't decide at that point, and I'm still undecided in some ways whether to be a lawyer or whether to work in the humanities.
Yeah. Cause I was, very interested in both. So I ended up doing my PhD jointly enrolled, which was something that was, yeah, it was Pretty rare. Yeah. At the time I had a supervisor, I was 50 50 and each film studies at Melbourne law school at Melbourne and also at Melbourne law school.
And I had a supervisor, Megan Richardson in the law school and Barbara Curry in film studies. So I had this kind of very interdisciplinary PhD. And so I wanted, I was really interested in the the advent and the development of photography and cinema in the 19th century and the way in which the law grappled with those new technologies.
Yeah. Yeah. And so I started researching that, but what I quickly realized, so that was my [00:06:00] kind of outlook to start with, but what I quickly realized was that in researching early cases involving photography and cinema I opened this Pandora's box of cases brought by women.
Tamara Wilkinson: Yeah.
Jessica Lake: So many of the cases were brought by women and this is in the United States because that's where I was focusing my research. And I thought that's fascinating. It was only two or three decades earlier that women even got the right to bring cases on their own behalf. Yeah. On their own behalf.
Yeah. They're not the majority of litigants generally but at this point they are the majority of litigants bringing cases arguing to have image rights
Tamara Wilkinson: basically. And it's really when you stop to think about it, you do notice how often you see these images of women, I'm talking about these sort of like old black and white images where the women are only passive participants in the photo.
And that is huge when you think about it, you shouldn't be able to go around [00:07:00] taking photos of people and then using them for your own financial gain with no permission and no sort of upside for the subject of the photograph.
Jessica Lake: Yeah, exactly. And so this became the kind of the big, I guess you could say gendered battle that was going on at the end of the 19th century in the United States.
It's because on the one hand you had women, as you say, being disproportionately the subjects of photographs because of, various kind of voyeuristic kind of motivations connected not just to them being Sexual commodities, but also through appetizing and magazines and that kind of thing.
So women form the majority of photograph people, but men of course. And the majority of photographers. Yeah. And whether the person sitting in front of the camera has any rights and whether the persons sit, holding the camera has rights Yeah. Became the issue. And of course. As photographers fought and won copyrights over photography at the end of the 19th century.
But women got what I now refer to as the consolation prize of [00:08:00] privacy rights. And they won through the courts both changes in statutory law in the United States, but also through the common law, they won a right to privacy, which meant that they had some control over their images.
Yeah. But these rights were relatively narrow or weak compared to copyright, which, was quite strong. Yeah.
Tamara Wilkinson: It makes me think a little bit when you're saying that just then about the much maligned selfie and the way that in the past women were the subject of photos and didn't see the upside benefits from that.
But now if you look at sort of Instagram stars, people like Kim Kardashian, they are taking the photos. And profiting from the photos, which is exciting when you think about it, it's a real role reversal in a way and empowering.
Jessica Lake: Yeah, it is. At the time that I mean, around this time, the 19th century, early 20th century, I must say that the role of women then in [00:09:00] society was rapidly changing.
Tamara Wilkinson: Yeah.
Jessica Lake: So it wasn't you had these traditional ideas of womanhood as passive, but then you also had this kind of invention of what they call at the time, the new woman.
Tamara Wilkinson: Yeah.
Jessica Lake: And the new woman was going into education. She was going into the paid workforce. She was also very up front about what'd I say?
Kind of parading or displaying herself in certain ways. Yeah. And so you see the rise of film stars, for example, at this time.
Tamara Wilkinson: The golden age. And
Jessica Lake: they're making money, or at least they're making a kind of public persona of their images. Yeah. So images are really valuable as commodities to women then. But as you say, with selfies now, you get copyright.
Tamara Wilkinson: Yeah.
Jessica Lake: And so that kind of helps you be able to exploit them.
Tamara Wilkinson: Yeah.
Jessica Lake: Better.
Tamara Wilkinson: It's really interesting. Yeah. It's a fantastic topic.
Jessica Lake: Yeah. It is really fascinating. And it my work on my book, but also the work I'm getting into now is a kind of this intersection of media [00:10:00] technology, Law and feminism.
Yeah, really. Yeah. So what are you working on at the moment? So at the moment I'm tentatively starting my next big project. Yeah. Exciting. Yeah, it's exciting. Which is looking at robot materiality. So with my work on photography and cinema, basically what I was looking at is Yeah. With representations of people and what laws interacted or regulated representations of people.
Yeah. So it's a kind of extension of that in the sense that I'm looking at this new kind of frontier of robots, robotics and the ways in which robots will be embodied.
Tamara Wilkinson: Yeah.
Jessica Lake: So I'm not interested in AI as such, what form. Are they going to take when they have a world? Yeah. And that could be either their voice or their kind of physical presence.
And it's, and where they're they do have a form, what kind of [00:11:00] legal implications might be of that form. So for example the actress Scarlett Johansson had a robot. It was it was, Seem to be like a sex robot. Yeah. But a robot made in her image. Yeah. And there are a lot of articles about that saying could she do anything Yeah.
About that. Because clearly a robot that can talk and move and be in the world in a particular way can cause harm to people, which is new.
Tamara Wilkinson: Yeah.
Jessica Lake: And it might be harm that's not covered by defamation law. That's not covered by copyright. That's not covered by privacy, even yeah, so it's I'm interested in both in Australia and then in a comparative perspective as to what particularly people whose Images are taken by robots can do .
Tamara Wilkinson: Yeah, because it's so rapidly developing that Yeah, very well could not be a law yet to protect against that .
Jessica Lake: And partly because partly because where you have got [00:12:00] robots replicating, human kind of form in some way. Yeah.
It's usually women's form. Yeah. So you have, Alexa, has a female voice. Yes. Siri. Siri. Exactly. And when you think of kind of sex robots are a huge growing industry but also service workers now increasingly being modeled as women. Yeah. And so I think this image of.
What form does romance have? It has a particular kind of, is a particular kind of priority thing for women. Yeah. Because they're not made in the image of men. Yeah. For whatever reason.
Tamara Wilkinson: Yeah. Yeah. It's quite creepy when you think about it. Yeah. It is creepy. It is creepy. I don't know if this sort of would be within your scope of knowledge or interest at all, but do you know much about things like, for instance women, the second to latest Star Wars movie, I think they recreated deceased actors using technology.
Do you know at all how the laws are developing around that? Is that going to be [00:13:00] allowed or will it be prohibited if it's against the wishes of the late actor?
Jessica Lake: Yeah. This has been a big thing in the United States and it connects with what they call the right of publicity. So the right of publicity.
Was a kind of morphed out of the right of privacy. So they're both kind of common law in their kind of origins, but they statutory a lot of the time now, but it morphed out of privacy. And so right of publicity basically says that a person has a right to profit from their image. And it has been held in a number of cases that, particularly in California, that dead people, their estates can bring rights to stop the image of the deceased actor being used in things.
So I know that's particular to California, it's not across the United States, so it would be kind of state by state. In Australia we don't have any [00:14:00] Yeah. So we definitely, therefore don't have a right of publicity, but we have, for example, laws like passing off, which might help you, but probably not with relation to somebody who's deceased.
But yeah, be interesting to look at. Yeah. It makes sense that those laws have developed in California, where this is. Yeah. More and more. Yeah, exactly. Yeah. Huh. Talking you just mentioned that there is no right to privacy in Australia. And I know that you've written a little bit about, or probably a lot about, revenge pornography.
Tamara Wilkinson: Can you tell us a bit about your work in that area?
Jessica Lake: Being my kind of field generally being kind of privacy law and media law I became interested Obviously, again, my PhD was on people's images. And so I came interested in what was happening in a kind of contemporary context in relation to that.
And what I started to see about six or so years ago was this kind of [00:15:00] increasing problem of the circulation of people's images without their consent, sexually explicit images. And and because in Australia particularly, we don't have, we haven't had a common law right to privacy. Yeah. Is there's been this kind of legal vacuum around the circulation of explicit images.
Yeah. Which I must say predominantly of women. Yeah. So I was looking at that field. So basically in Australia, we, yeah, we don't have a right to privacy, but we have some other legal actions like breach of confidence, which have helped in some revenge porn cases. Yeah. But also, defamation and copyright, they all come together and form this kind of patchwork of laws, which kind of protect.
And we've got also some new criminal laws in Victoria, particularly in South Australia and I think New South Wales now. Yeah. Nothing federally, but. Which also come into play. But it's interesting because there's no, because there's no [00:16:00] federal law, but also because we don't have any history of really having a right to privacy.
All these different kind of legal bits and pieces don't really add up to a whole. So they don't really provide great coverage of victims who suffer revenge pornography. But also there's a lot of circumstances, for instance, that where women's, Women might be sexually harassed or objectified online that are not going to be caught by revenge pornography laws as well Yes, they're not they might not be sexually explicit photos.
But there but the harm is in the kind of turning them into sexual objects Yeah So even if they're wearing, a school uniform or whatever It's turning them into that which seems to be the harm and we don't have anything about you know That helps with that now and equally, in terms of laws about speech and discrimination, we've never had laws that have prohibited hate speech on the basis of gender, [00:17:00] which is really fascinating.
There's racial vilification laws and those kinds of things, but there's not. So there's this particular kind of blind spots in that field.
Tamara Wilkinson: And it really betrays the kind of patriarchal nature of the law, doesn't it? Just that omission is there. And I had never thought about or realized that before.
Which, this is upsetting. Yeah. On my behalf. Wow that's really awful, isn't it?
Jessica Lake: It's quite bizarre. And I think, in terms of, law is a kind of, largely, seemingly, universal, neutral kind of institution, but being very actually particular in its kind of priorities.
You see how some kind of, I guess you could say invasion of privacy interests become to dominate lawmaking and I'll give you an example of say information privacy. For example, double data privacy becomes to [00:18:00] dominate the kind of conversation. And then other kinds of forms of invasion of privacy, such as revenge pornography don't get the same traction because they're not happening and they're not a kind of priority for our lawmakers who are generally men.
Tamara Wilkinson: Yeah. That's really interesting. What a fascinating area you work in. Do you think that the topics that you've chosen to research and write on Do you think they have come about because you're such a strong feminist? Or has it just been luck?
Jessica Lake: I think it's been a kind of a way of bringing together all those things that I'm interested in.
Yeah. So I did do is my major arts degree film studies. Yeah. Because, and I did film studies in American history because I was just really fascinated Yeah. By those areas. And so what I've fallen into has been a way of combining your two interests, all those interests. Yeah. Together. It's really nice.
Which is [00:19:00] nice. Yeah. Yeah. Oh, that's awesome.
Tamara Wilkinson: Jessica, thank you so much for coming and chatting to me today. It's been wonderful getting to hear about your work. I feel like I could just pepper you with questions all day, but I won't, I'll let you go.
Jessica Lake: It's been fantastic. Thank you so much. Thanks, Tamara. It's great to be here.