It’s the media’s ultimate Christmas gift — n-ked photos, embarrassed footballers and a net-savvy teenage girl. But the St Kilda photo scandal isn’t just holiday media fodder, and with the legal implications of the images’ release mounting by the day, Crikey decided to hit the books to find out the facts.
Do existing privacy laws apply?
Lyn Nicholson, senior lawyer with Holding Redlich, says there is no current privacy law to prevent an individual from uploading another person’s private information onto the internet. However, a court may issue an order to restrain them from doing so — as Justice Marshall of the Federal Court of Melbourne did on Monday to prevent the “St Kilda schoolgirl” from releasing more explicit images. But such orders are of questionable value in the digital age given the rapid and widespread diffusion of viral images.
According to Nicholson, the players featured in the images can argue there was a breach of confidence by the teammate who took the photos: “The obligation of confidence is the obligation owed by one person to another either express or implied. It is an issue in the St Kilda case as it is claimed the photos were confidential between teammates and not to be published or passed on.”
The fact that the teammate did not voluntarily release the photos, adds “a whole new level of complexity about unauthorised access to the images”.
Do they need reform?
In 2008, the Australian Law Reform Commission completed the report For Your Information, setting out 295 recommendations for privacy law reform. Importantly, recommendation 74-1 suggested federal legislation should “provide for a statutory cause of action for a serious invasion of privacy”, including: instances where an individual’s home or family life has been interfered with; where they have been subjected to unauthorised surveillance; interference with an individual’s correspondence or private communications; disclosure of “sensitive facts” relating to an individual’s private life.
Recommendation 74-2 consolidated the previous suggestion by urging the federal government to draft legislation to ensure an individual can legally establish liability by claiming there was a “reasonable expectation of privacy” or the act or conduct complained of would be considered “highly offensive” to the ordinary person.
“In the St Kilda case, as it was all amongst teammates, you could assume a reasonable expectation of privacy,” Nicholson says. Whether the release can be considered “highly offensive” is a separate matter, she adds.
Interestingly, the recommendation also suggested reform to ensure courts take into account the public interest when considering the claimant’s claim to privacy — presumably the argument favoured by Channel 7, which defended its use of the explicit shots during a nightly bulletin on Monday night because of “obligation to our viewers to report the news”.
Who can they sue?
According to Mark Pearson, Professor of Journalism at Bond University and author of The Journalist’s Guide to Media Law, the Andrew Ettingshausen case from 1993 set an important precedent for privacy and the publication of private images. The Sydney rugby league player won his claim against Kerry Packer’s ACP Magazines and $350,000 in damages (later reduced to $100,000 on appeal) after HQ magazine ran a n-de photograph of him taken and published without his consent.
Pearson said the case established an important defamation argument that could potentially drive a claim by the St Kilda players at the centre of the photo scandal: “They could sue whoever publishes them and, although their reputation may not be lowered, defamation also applies to ‘holding someone up to ridicule’ which was an important element of the Ettingshausen case.”
In this instance, Nicholson says a significant legal issue is the lack of consent to the release of the photos: “Publishing of the photos suggests the footballers gave their consent, and this could be taken to harm their reputation. For example, you could draw the inference that they are people who would consent to naked public images of themselves.”
The footballers could also sue the young girl, but given the nature of civil claims it is highly unlikely they would seek compensatory damages from a 17-year-old.
What other laws may apply?
Interestingly, the “upskirting” amendment to the Victorian Summary Offences Act of 1966 could come in handy for the St Kilda players featured in the disseminated images. As the Act states, the crime of upskirting involves “the unauthorised observation or capturing of visual images of the genital or anal region of a person’s body for other purposes”. As per section 41.B, anyone found guilty of upskirting could face jail time:
“A person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured. Penalty: 2 years imprisonment … The reasonable expectation test is an objective one — what would a reasonable person in the position of the person whose genital or anal region is being visually captured have expected.”
The Crimes Act of 1958 might also be applicable, if it can be proved the girl at the centre of the scandal obtained the photos illegally. As section 81 states, an individual may be found guilty of “obtaining property by deception” if they gain “ownership, possession or control of it, and obtain includes obtaining for another or enabling another to obtain or to retain”.
Also relevant: the Surveillance Devices Act of 1999, specifically section 7, which focuses on the “regulation of installation, use and maintenance of optional surveillance devices”. If it can be established in court that the players photographed did not knowingly consent to the images being taken, the individual responsible could face up to two years imprisonment or a maximum fine of more than $28,000.
rather than the legalities of the case, why is nobody discussing the most important issue:
what happened to his body hair?
is he naturally bald all over, or does he have a full body wax?
I think we should be told
Somehow I don’t really feel sorry for these blokes. Funny how AFL players had no problem with Laura Bingle being sent to all and sundry for a bit of a laugh and a perv. Now that the shoe is on the other foot, well we have all manner of important people, having very serious frowns, waving their finger about and preaching to the mere mortals about the right to privacy. Someone better by the AFL and the Players Association a dictionary for Xmas and the first word they should look up is Hypocrisy spelt H Y P O C R I S Y which means a state of pretending to have beliefs, opinions, virtues, feelings, qualities, or standards that one does not actually have. Mum – What’s that saying about a goose and a gander?
What about blackmail ?
Mob of precious princesses. Poor pets.
They are amongst the most self-absorbed people in the community along with the overpaid players in some of the other major sports. They are highly paid and spend years totally devoted to looking after themselves, all the while being protected from reality and maturity by the AFL and club level cotton wool brigade. It’s apparently too much to hope that they behave themselves so they don’t get caught out and far too much to hope that they handle exposure with any degree of decorum.
Didn’t StKilda players post stuff about group sex on the girl’s facebook page and if so isn’t this more offensive and defamatory than the photos? maybe the girl should counter sue them as remarks comncerning a women participating in certain sexual actions is far more defamatory than the issuing of a silly photograph in which those photographed were willing participants. For StKilda to seek damages from the girl demonstrates what a mysognistic mob they are.
Historically footballers have treated women like crap. the AFL corporate motherhood statements upholding the status of women in the community is just that – empty motherhood statements that are not backed up by action. Has the AFL ever taken action against players following complaints by women? Women who come forward and complain usually wish that they didn’t bother with the “complaints” process usually ending up adding insult to injury.
Photographs are not private documents in any sense as they are a visual representation of an actual event that took place – The camera does not lie. If St. Sook and Co are going partake in photographed events that are likely to offend others and the pictures see the light of day that is their problem – not the problem of anyone who uploads them onto a social media site.
StKilda Football club is attempting to stifle the freedom of the internet just as dictorial regimes such as China, Russia and right wing corporations do and no doubt those who wish to curb free speech will be using this case as an excuse to justify the limiting of people’s ability to post content onto the internet.