Privacy and WAGS

By Legal Eagle

I have to say that I never really understood where the acronym WAG came from – I had to look it up on Wikipedia, and I found that it originated as a descriptor of the Wives And Girlfriends of the 2006 English World Cup soccer club. Anyway, I’ve noted that our press has started referring to the wives & girlfriends of the Australian cricket team as WAGs. The woman who I have seen described as a WAG most often appears to be Michael Clarke’s fiancee, Lara Bingle. Her main claim to fame is that she appeared in the ad which asked Where the bloody hell are you? I’ve never had much interest in that kind of thing – the only reason I know who she is is because I like cricket.

Anyway, I saw that Bingle plans to sue footballer Brendan Fevola for releasing images of her taken in the shower some three years ago:

Lara Bingle’s decision to sue Brendan Fevola over the distribution of a near-naked photograph of the swimwear model strikes a blow for women’s rights, says celebrity agent Max Markson.

Bingle decided yesterday to sue the controversy-plagued AFL footballer for allegedly distributing the revealing picture, taken on a mobile phone during the pair’s brief affair in 2006.

Markson confirmed Bingle will take action against for the Brisbane Lions forward for breach of privacy, defamation and misuse of her image after the steamy photo appeared in this week’s Woman’s Day.

I understand that Fevola was distributing the picture amongst his football colleagues and friends, whereupon it found its way to Woman’s Day.

The thing which has amazed me is the venom which has been directed at Bingle for taking this action. This morning, Bingle’s agent, Max Markson, was interviewed by Jon Faine on ABC 774 (excerpt of interview here). Faine asks Markson, “So she’s happy for an image without her clothes on to be circulated as long as she’s paid for it?” In response to Markson’s comment that Bingle hasn’t done fully nude photographs as far as he’s aware, Faine says, “But she has taken her clothes off and posed for men’s magazines?” Markson responds that Bingle has successfully sued Zoo magazine for using unauthorised naked shots of her in the past. “So she’s happy if she’s paid for photos of her?” persists Faine.

Kristen, a talkback caller later takes Faine to task, pointing out that it’s Bingle’s choice that is at issue (atta girl Kristen). In response, Faine says that says that Bingle is just using other people’s moral outrage to protect her brand.

To extend Faine’s argument to a more shocking situation, would Faine argue that if a prostitute is raped it isn’t a problem? After all, a prostitute has sex with random men all the time anyway, and perhaps her problem is that she wasn’t paid in this time? I very much doubt that Faine would argue that. He needs to think about the logical ramifications of his argument here. Just because Bingle makes her living by posing in swimsuits doesn’t mean that she deserves to have naked images of herself taken without her consent disseminated around the Brisbane Lions football club.

And some of the comments on the various articles about Bingle instituting legal action! Apparently the photo was taken when Bingle was in a relationship with Fevola, and he was married at the time. She was 19 years old, and claims that she didn’t realise he was married. A few of the comments exhibit the view that Bingle is a slut and deserves what she got. (No, of course it’s not the married man’s fault that he had an affair, it’s all the woman’s fault.)

The point is that this photo was take without Bingle’s consent (it’s clear that she didn’t want the picture taken from the small version in the linked Herald Sun article). And when Fevola distributes the picture to all his mates, that’s a form of harassment and bullying. It was non-consensual. It’s arguable that its distribution is intended to humiliate and belittle her. It doesn’t matter whether she’s a WAG and a swimsuit model, or that she was having an affair with Fevola at the time. No one should have to put up with that kind of thing.

In terms of defamation, there is precedent on the release of naked photographs where the intention is to subject a person to ridicule and contempt. In Shepherd v Walsh [2001] QSC 358,  Sonia Shepherd successfully sued the publishers of a magazine called The Picture, after it published a nude picture of her. While the picture was of Ms Shepherd, she did not consent to its publication, and it was in fact sent in by her ex-boyfriend and his new girlfriend in revenge. There are also parallels with the case involving Andrew Ettingshausen, a famed rugby league player, who successfully sued GQ Magazine after it published a nude photo of him without first seeking his consent. At trial, he was awarded $350,000 in damages, but damages were reduced to $100,000 on appeal (see Australian Consolidated Press Limited v Ettingshausen (unreported, New South Wales Court of Appeal, 13 October 1993, Gleeson CJ, Kirby P and Clarke JA).

The question will be whether Fevola intended to subject Bingle to ridicule and contempt, or whether he merely sent the image on to a few mates and it got out of hand.

I note Bingle has also claimed breach of privacy – I’ll be very interested to hear where that claim goes. The case could be said to be reminiscent of Giller v Procopets [2008] VSCA 236, where Mr Procopets distributed explicit images of Ms Giller to friends and family after their relationship broke down. As I’ve discussed in a post here, the Court of Appeal did not find it necessary to decide whether there was a tort of invasion of privacy. I’ll be interested to see what happens with this one.

One Comment

  1. Posted March 13, 2010 at 1:01 pm | Permalink

    You like Favlova. How about Dingle and Favlova. Pity they ain’t together no more. They could double date with Vile and Tacky.
    Make a reality show out of it. Call it: The Ugly Australians. Derryn Hinch, a regular guest star.

One Trackback

  1. […] The players in the photos may be able to sue for defamation (damage to reputation) particularly considering the parallels with the Ettingshausen case mentioned here in my post on Lara Bingle. […]

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