Wikipedia:Possibly unfree files/2012 December 10

December 10

File:Enencephaly.jpg

File:Enencephaly.jpg (delete | talk | history | logs).

• I believe this image runs afoul of WP:IUP#Privacy rights on several points. Although, given the circumstances, the subject of the image is clearly deceased by now, and identifying that subject individually would be difficult at best, still 1) the image was clearly taken in a private place, and 2) the image at least arguably (I would say clearly) is demeaning to the subject. Both of these together should require at least the consent of the subject's next of kin, of which there is no evidence.

To further support my two main points:

1. All indications, including the blanket, the blood, the uncut umbilical cord, and the uploader's claim to be a doctor, support the finding that this image was taken in a hospital. WP:IUP#Privacy rights specifically mentions a medical facility as an example of a private place, in which there is an expectation of privacy against photography.
2. If you look at the archives of Talk:Anencephaly, you will see that many people have found this image to be objectionable and have requested that it be removed. The most compelling of these are from parents affected by this disorder [3][4] (note, the image in question was at the top of the article at the time of the first of these comments). I mention this only to support my contention that the image is grotesque and demeaning. These requests have generally been countered with WP:NOTCENSORED. While I fully support WP:NOTCENSORED, the problem with this image is not simply that it is disturbing but that it is demeaning. In particular:

• The subject's mouth and eyes are open in a grotesque expression,
• The subject's body is bloody, having clearly been photographed without first being cleaned after its birth, and
• The subject's body is at a skewed angle across the image, compounding the image's overall grotesque effect.

The other image currently adorning Anencephaly (currently at the top of the article) provides an instructive contrast. While this image unflinchingly shows the deformity, it does so with appropriate respect as the subject is cleaned, its mouth and eyes are closed, and it is properly oriented and shown against a dark background. Thus it does not have any of the unnecessarily grotesque effects of the image in question here. Furthermore (relevant to this noticeboard), the other image is apparently of a preserved specimen, which means that the next of kin most likely donated the body to science, thus giving implicit permission for photography. To conclude, the purpose of this bullet point is to demonstrate that the image is grotesque and demeaning to the subject.

To its credit, WP:IUP#Privacy rights specifically cites a moral obligation upon us, as Wikipedians, to treat image subjects with respect even beyond the bare requirements of the law. The parents of the subject of this image should have had the opportunity to refuse consent to have the subject depicted in this way. As there is no evidence that they did, the image should be declared unfree and removed from Wikipedia. --BlueMoonlet (t/c) 17:46, 10 December 2012 (UTC)

The argument could easily be stretched such that nearly all images on Wikipedia would need to be removed. If a pathologist uploaded a slide of cancer such as this one [5] is the person consent required? How about a persons X-rays? The answer from the ethics literature is "no". As long as no "person" can be identified from the image signed consent is not needed. An image of anacephaly is not an identifiable person. Doc James (talk · contribs · email) (if I write on your page reply on mine) 20:52, 11 December 2012 (UTC)

Your rebuttal rests on the contention that anencephalics are not persons. As the article discusses, this is hardly a settled question. Generally in the U.S., an anencephalic is issued a birth certificate, or at least a death certificate, and cannot be an organ donor until dead. --BlueMoonlet (t/c) 21:07, 11 December 2012 (UTC)

• Comment if the newborn was born deceased, would the privacy rights still apply? Aside from any image of this condition being grotesque, I don't see how this is much more grotesque than any other such image could be (whole body, true color image, frontal view); If the subject was born dead, then would it still be cleaned? I don't see how an image of a newborn prior to being cleaned is demeaning, it would mean that any father videotaping childbirth is participating in child abuse by demeaning the child. As for the orientation of the child, baby pictures frequently feature this orientation. So it seems as though the only concerns are privacy rights, and whether the open eyes represent a demeaning image, or is it just squeamishness and WP:CENSORSHIP. -- 70.24.247.127 (talk) 07:18, 11 December 2012 (UTC)

We have no evidence that the subject was born deceased (i.e., stillborn). In fact, the opposite is more common, as they are perfectly well-suited to life inside the womb and do not die until some hours after birth, so we should presume that the subject was born alive.

This is not the same as a father videotaping childbirth; this image is formulated to be unnecessarily shocking, and has had that effect on many people. As I mentioned in the nomination, please see this image for an example of how the necessary information can be shown in an image without being demeaning.

I don't think the question should turn on whether you find the image demeaning. It should be enough that many people find it so, and that it was taken in a private place. --BlueMoonlet (t/c) 20:01, 11 December 2012 (UTC)

To be deemed to be a living human in Western medicine one has to have more than a beating heart (otherwise organ transplantation would be murder). One also must have a functioning forebrain. As this condition does not have a forebrain their never would have been "human life" present per Western legal understanding. This image is not demeaning. It is simply a rare and unfortunate genetic abnormality. We at Wikipedia cover some difficult topics. Doc James (talk · contribs · email) (if I write on your page reply on mine) 20:46, 11 December 2012 (UTC)

Your rebuttal rests on the contention that anencephalics are not persons. As the article discusses, this is hardly a settled question. Generally in the U.S., an anencephalic is issued a birth certificate, or at least a death certificate, and cannot be an organ donor until dead.

And please stop patronizing. There is no question that we at Wikipedia should thoroughly cover this difficult topic; the question is how to do it with proper respect for the individuals affected. --BlueMoonlet (t/c) 21:07, 11 December 2012 (UTC)

• Keep WP:NOTCENSORED. Somethings in medicine are not pleasant. Doc James (talk · contribs · email) (if I write on your page reply on mine) 16:26, 11 December 2012 (UTC)

Your comment is not responsive to the nomination arguments. I already showed that WP:NOTCENSORED does not answer the question, which does not center on unpleasantness but on respect. --BlueMoonlet (t/c) 20:01, 11 December 2012 (UTC)

This work was released into the public domain by the uploader. Thus their are no copyright concerns unless you have evidence that the image was not taken by the uploader. Those with anecephaly are technically never alive (as per brain death). Thus the ethics that surround taking this image are the same as those that surround taking images of other pathological samples. Having these images are important for educational purposes. Doc James (talk · contribs · email) (if I write on your page reply on mine) 20:22, 11 December 2012 (UTC)

Your rebuttal rests on the contention that anencephalics are not persons. As the article discusses, this is hardly a settled question. Generally in the U.S., an anencephalic is issued a birth certificate, or at least a death certificate, and cannot be an organ donor until dead. --BlueMoonlet (t/c) 21:07, 11 December 2012 (UTC)

• Delete per WP:IUP#Privacy rights, which discourages photographs taken at hospitals without permission. - Presidentman talk · contribs (Talkback) 21:11, 11 December 2012 (UTC)

This is not "identifiable people" and thus WP:IUP#Privacy rights does not apply. Doc James (talk · contribs · email) (if I write on your page reply on mine) 21:24, 11 December 2012 (UTC)

Every person is identifiable by someone, and this person is probably identifiable by the uploader. - Presidentman talk · contribs (Talkback) 21:44, 11 December 2012 (UTC)

That is not what it means by "someone in an image is identifiable". Doc James (talk · contribs · email) (if I write on your page reply on mine) 21:48, 11 December 2012 (UTC)

The definition of "identifiable" is "Capable of being distinguished and named." per Wiktionary. How does this person not meet this requirement? - Presidentman talk · contribs (Talkback) 22:05, 11 December 2012 (UTC)

There is a specific legal definition of what constitutes identifiable when it comes to patient images. Doc James (talk · contribs · email) (if I write on your page reply on mine) 22:47, 11 December 2012 (UTC)

And what would that be? It seems hard to believe that showing a subject full in the face would not meet any definition of "identifiable." --BlueMoonlet (t/c) 00:25, 12 December 2012 (UTC)

This image does not identify the parents in question and thus would be anonymous. Doc James (talk · contribs · email) (if I write on your page reply on mine) 00:36, 12 December 2012 (UTC)

So you are saying that images of newborns are presumed to not be identifiable? Can you support this claim? --BlueMoonlet (t/c) 01:35, 12 December 2012 (UTC)

• Comment Most children born with this condition are stillborn per [6]. Also we should follow the same guidelines as the academic press. They contain images similar to this one and require no greater consent that we have. Doc James (talk · contribs · email) (if I write on your page reply on mine) 21:32, 11 December 2012 (UTC)

Would you care to cite an example of an image like this in the academic press? As I have already said, this is a good example of a graphic yet respectful image, such as you would find in the academic press. You might further note that this image has an OTRS tag, indicating that consent was explicitly given. --BlueMoonlet (t/c) 22:16, 11 December 2012 (UTC)

I did a degree in anatomy before I went into medicine. Google books unfortunately dose not show most images. Do you have access to a medical library? Head down their and pick up any major textbook major congenital malformations. Doc James (talk · contribs · email) (if I write on your page reply on mine) 22:44, 11 December 2012 (UTC)

The burden of proof is on you to cite an example. I highly doubt that respectable textbooks routinely show subjects full in the face in an unnecessarily unflattering pose. --BlueMoonlet (t/c) 23:44, 11 December 2012 (UTC)

Sure will provide some examples when I get home. But yes many do and we do not consider them unflattering just a fact of life.Doc James (talk · contribs · email) (if I write on your page reply on mine) 00:56, 12 December 2012 (UTC)

• Keep. I concur with James; foetuses which develop with this condition are never alive in the legal sense, and so I consider it no different in principle to the histology slide included at hydatidiform mole (this may sound like an extreme analogy, but I do not mean it to sound overly pointed). To say that the subject "is clearly dead by now" is incorrect - the subject was never alive. I'm not convinced by the argument that the image should be deleted, essentially, "out of respect", either. There are many images on wikipedia which it could be argued are subjectively demeaning to the subject. For example, a devout Christian (who may view homosexuality as shameful act) may argue that this image is demeaning to its subject (who is identifiable). This doesn't constitute a rationale for deletion. Being offensive or divisive never has been. If the only purpose of this image was to demean the subject then I might agree with you, but it is not - the only intent here is educational. Basalisk ^{inspect damage}⁄_berate 21:49, 11 December 2012 (UTC)

As noted above, much of your argument rests on the contention that anencephalics are not living persons. As the article discusses, this is hardly a settled question. Generally in the U.S., an anencephalic is issued a birth certificate, or at least a death certificate, and cannot be an organ donor until dead.

In your second point, you are confusing "offensive or divisive" with "demeaning". How many times do I have to say that WP:NOTCENSORED is good policy?! The image you cite depicts the subjects in a way consistent with their wishes, so there is no way it could be interpreted as demeaning. --BlueMoonlet (t/c) 22:16, 11 December 2012 (UTC)

Some people find pictures of Muhammad divisive, others find use showing the Rorschach inkblots offensive. We are an encyclopedia. We are here to provide knowledge not to hide images some find objectionable based on a over interpretation of the law. Medical textbooks publish similar images with equal consent to what we have done. This should be sufficient for us to keep the image in question. Anything more is simply an attempt at WP:CENSOR Doc James (talk · contribs · email) (if I write on your page reply on mine) 22:37, 11 December 2012 (UTC)

Once again, Muhammad and Rorschach are irrelevant to this discussion. I am not questioning WP:NOTCENSORED, but it has its limits. --BlueMoonlet (t/c) 22:58, 11 December 2012 (UTC)

IUP does not apply as the subject of this image was never alive in the full medical sense of the term. Doc James (talk · contribs · email) (if I write on your page reply on mine) 23:14, 11 December 2012 (UTC)

That's your opinion, and significant authority is against you, as already noted. --BlueMoonlet (t/c) 23:44, 11 December 2012 (UTC)

• Comment It has been argued that consent is not required to place an identifiable picture of a person into a medical textbook (for the purposes of this sub-thread, let's please concede that such a case may apply to the current situation). However, WP:IUP#Privacy rights specifically mentions medical facilities as an example of a private place, in which there is an expectation of privacy against photography. Are these two policies reconcilable, or should we conclude that Wikipedia's standards are different from those of a medical textbook? If the latter, surely Wikipedia's standards should control on this case. --BlueMoonlet (t/c) 00:47, 12 December 2012 (UTC)

No what has been argued is that this is not an "identifiable person." and thus IUP dose not apply. Doc James (talk · contribs · email) (if I write on your page reply on mine) 01:19, 12 December 2012 (UTC)

Okay, glad to have clarified that point. --BlueMoonlet (t/c) 01:35, 12 December 2012 (UTC)

• Delete Please see Commons:Patient images, which is an essay. Started by another Wikidoc, I expanded it with guidelines drawn from various sources. I believe in the UK doctors can't just go around snapping photos of patients or their bits using their cameraphone. (See the end of this page).

As far as this picture goes, I think the "never alive / not a person" argument is a fairly clinically/legal-minded response that fails the duck test. Many people would regard this as someone's tragically dead baby and worthy of the same respect. I think the doctor behaved unethically in taking this picture, if he did not have the parent's consent, and believe he should have written formal consent before uploading it to WP. Without an assurance on this point, I think WP should delete it. If the consent was achieved, then the image is acceptable. I'm no expert, though, but based on the guidance linked to from the Patient images page on Commons, I suspect if any UK doc had asked their professional body about whether they needed consent for this picture, they would be told yes, even if that yes was erring on the side of caution. So should we. -- Colin°^Talk 19:39, 12 December 2012 (UTC)

• Comment Commons has different standards than EN.wiki, as has been seen repeatedly in file deletion discussions. Since EN.wiki follows US law, and Commons is more strictly regulated than that, what applies to commons is not necessarily the case here. Particularly, UK law is not applicable. -- 70.24.247.127 (talk) 04:23, 13 December 2012 (UTC)

This isn't an issue of law, and I do wish both WP and Commons would rise above the very low bar of what is legal or not. A simple test of the ethics is whether you would be comfortable with the subject (in this case the subject's parents) knowing what you had done. If this doctor had taken out his mobile and snapped away in front of the mother, I'm sure the response would be "What the **** are you doing?" followed by the crunching noise of the father stamping on the doctors mobile phone .... -- Colin°^Talk 08:39, 13 December 2012 (UTC)

Having taken many difficult pictures [7] most when explained why this is important are happy to have their or their child's image taken. No swearing, no crunching of phones. Most people want to advance medicine. Wikipedia is used by most physicians in the developed world. People have gone through a lot and want to help other with their experience. That is why people whose child has died are frequently willing to donate the child's organs to someone they do not know. That is why people are willing to take part in experiments (now with respect to ethics that drug companies / experimenters are able to get away with NOT publishing results in full is a much bigger issue than than this and something we should get involved in trying to address).

By the way has we asked the uploader yet if they did get permission from the parents? Many feel that being involved with something like this is doing a little good with a very bad situation. Doc James (talk · contribs · email) (if I write on your page reply on mine) 17:00, 13 December 2012 (UTC)

If the uploader/photographer asserts they got consent then I am prepared to assume-good-faith and believe them without hard evidence. But otherwise, the Precautionary principle applies and we must not assume consent was asked for or granted. Indeed there are several reasons why I am doubtful that was the case. The vital point is that this is the sort of image for which consent is required, even if just verbal, and that legalistic discussions over whether the subject was ever alive are missing the point. Colin°^Talk 22:47, 13 December 2012 (UTC)

Doc James, for once I completely agree with your comment. Yes, when communication is free and honest, most parents do want something good to come of their tragedy, such as the taking of a picture that will benefit medical education. But also, in such a situation, the parents will be part of the process of taking that picture and will ensure that it is done respectfully. Unfortunately, there is no evidence that that happened in this case, and I believe the attributes I enumerated in the nomination are evidence that it did not.

As I was required to do as part of making this nomination, I informed the uploader of this discussion. I'm not sure I'd be prepared to simply take his word, if he did show up and say that he had consent (he's just some guy on the Internet, ya know?). I can see the argument that WP:AGF should go that far, but I'm not sure; an OTRS verification would be better, as was done for this image. --BlueMoonlet (t/c) 04:39, 14 December 2012 (UTC)

There is no precedent for requiring OTRS. If this were to indeed to become the requirement I would be forced to head off to join another medical wiki and leave this one. The images I upload even if identifiable are not associated with a name. I am not going to request that I can give a person's name to some volunteer at Wikipedia. There is no evidence that the uploader did not get permission. Has a parent come forwards to claim that this is their offspring? I think not. I have never documents on Wikimedia Commons that I have signed consent for any of my images even though I always do. Thus we should assume good faith and that the uploader got appropriate permission. Doc James (talk · contribs · email) (if I write on your page reply on mine) 05:16, 14 December 2012 (UTC)

I agree completely with James wrt OTRS being a completely unsuitable requirement and its inappropriateness for handling private patient-identifying information. I do feel, that if we agree consent was required ethically (even if only verbally), then consent should be explicitly stated as having been received by the uploader/photographer. This is in line with our requirements (and trust until evidence suggests otherwise) that uploaders state whether images are their own works, or where they got them from, and our assumption of good faith wrt image description/title. Images of unknown provinence get deleted -- we don't just assume it is probably ok... we need explicit reasurrance from the uploader for that.

To be clear here, there are ethical, possibly contract of employment issues, and possibly governing-professional-body-issues wrt the doctor-patient situation here. But these "non-copyright" issues don't legally affect Wikipedia or Commons. Legally, James may be right that the "not alive" aspect means there is no "person" to be "identified". I feel it is right, however, that WP/Commons gain some explicit assurance from the uploader that the picture was taken ethically. But, like James, I'm opposed to making any requirement that someone provide proof. Colin°^Talk 09:20, 14 December 2012 (UTC)

If we are going to push for this to be a requirement going forwards than we should add this question to the upload Wizard. I would support this going forwards with a question like "If there is an identifiable person in the picture was consent for the picture obtained?" But applying this retroactively I do not think is a good idea. I do not want to manually add this to the 1500 of so images I have uploaded. Doc James (talk · contribs · email) (if I write on your page reply on mine) 15:08, 18 December 2012 (UTC)

There's a lot the upload wizard could do to help folk. And we don't need consent for all identifiable people - only where privacy is expected, possible hurtful, etc, etc. I could see the steps, though. "Are their identifiable people in the image?" If yes then further questions based on our policy on identifiable people. Then the consent question. As for your 1500 images, if they all have consent then you could ask someone good at scripting to add the {{consent}} template to them. There's probably somewhere on Commons for such requests. Colin°^Talk 17:01, 18 December 2012 (UTC)

The decision regarding this image need not set any precedent for your 1500 images. It is the lack of dignity, not the graphic medical condition, that makes this image exceptional and intensifies the privacy concerns. --BlueMoonlet (t/c) 18:21, 18 December 2012 (UTC)

Dignity is very subjective. I do not have any concern with this image regarding dignity but others do. Some feel that us having any images of Mohammad insults the dignity of his followers. So I would be hesitant using this as a criteria. Doc James (talk · contribs · email) (if I write on your page reply on mine) 18:41, 18 December 2012 (UTC)

Not the same thing. We are not talking about viewers of the image that may be disturbed or offended. We are talking about the basic human dignity of the subject of the image. --BlueMoonlet (t/c) 20:26, 18 December 2012 (UTC)

This, by the way, is a beautiful picture, despite the sadness of the deformity. You captured the subject's humanity well, Doc James. It's another great counter-example to the image under nomination. --BlueMoonlet (t/c) 04:47, 14 December 2012 (UTC)

That is not a similar great deformity, thus is not a counter-example at all. It's only a minor deformity, of something that is frequently on TV for charity advertisements. -- 70.24.247.127 (talk) 22:45, 14 December 2012 (UTC)

But I'd like to emphasize one last time that it's not the nature of the deformity that is a problem with this image (if it were, then Doc James would have a convincing argument that medical education is more important). The problem is respecting the humanity of the subject. --BlueMoonlet (t/c) 14:50, 18 December 2012 (UTC)

Yep. I'd have the same objections for a normal child. I fully support the need for WP to have sometimes-shocking images. Colin°^Talk 17:01, 18 December 2012 (UTC)

Clearly this conversation has concluded, but no one has closed it. Now there is a new development. Despite the unresolved contention here, the same user has uploaded the image to Commons. I am not sure how to proceed, and I have posted a question at a (hopefully) relevant place on Commons. --BlueMoonlet (t/c) 19:27, 27 December 2012 (UTC)

Well, it means I could delete this as CSD#F8. You're welcome to nominate it for deletion at Commons if you'd like; it's their problem now. The bot will be along to close this momentarily. Chick Bowen 03:23, 29 December 2012 (UTC)

I've undone the automatic closure and posted a request for closure at WP:AN/RFC. This is a substantial conversation that had reached maturity and it deserves to be evaluated.

After conducting a bit of conversation on Commons, I am starting to understand that Commons has much lower standards than English Wikipedia for hosting an image. However, whether to include this image in an English Wikipedia article is still a question that should be answered according to the norms of English Wikipedia, and the debate on this page is still relevant to that question. I hope it will be properly closed. --BlueMoonlet (t/c) 03:07, 3 January 2013 (UTC)