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.
49 Comments
I’m wondering how much of the boy-bitching in this is straight up jealousy of Michael Clarke and the fact that he has ‘pulled’ a hot fiancee. It is very funny when boys bitch; they aren’t very good at it for a start.
And yes, this could be the tort of invasion of privacy deal-breaker, overturning Lenah Game Meats and Giller. Way to shit in your own nest, ladies and gentlemen of the press, and really put the kybosh on freedom of speech.
On another thread over at LP, one of the commenters made the point that we have let civil society atrophy so comprehensively that we now expect law and the state to do everything when it comes to the maintenance of normal civil relationships between people. The way this is going, we’re going to have the law policing what should be fundamental ‘civil’ behaviour, all because people are incapable of exercising very basic levels of restraint (like, if you take saucy pictures of your mistress, make sure they don’t become public).
I remember the in crowd at high school: Barbie Dolls and Rugby Gorillas. Interesting how they eventually grow up and out of it, not!
It is very funny when boys bitch; they aren’t very good at it for a start.
There are exceptions.
Good luck to her, much of the backlash sounds a bit too close to ‘she’s a pro anyway, she asked for it’. Far beyond left and right, his was simply a dog act.
Virtually unrelated, but I’ve always remembered reading about the Tom Hughes QC cross on some editor during the Ettinghausen case, went something like:
“Are you looking at the photo?”
“Yes”
“What is that?”
“I don’t know”
“It’s his p3nis isn’t it?”
“I’m not sure”
“What else could it be- a rubber ducky?”
I think you’ve misremembered the cross-examination. It was, to my recollection “is it a duck?” which was a play on the NZ accent of the witness, Shona Martyn, editor of HQ magazine.
For a reasonably reliable version, see
http://www.scribd.com/doc/23713427/A-Short-History-of-the-Penis
at pp 15-16 quoting Ian Hickie, who was either there or, more likely, was given the court transcript.
Don’t want to rain on anyones parade but from the images that I have seen Bingle is looking straight at the camera so I can’t believe that she did not know tha she had been photographed, The question that I keep thinking of is if she objected to the pictures why did she not insist that her then lover delete them immediately after they were taken?
I’m not defending Favola here but if she knew that pictures had been taken and has not insisted that they be deleted doesn’t that suggest that at the timethat she was implicitly consenting to the images being created?
she objected to the pictures why did she not insist that her then lover delete them immediately after they were taken?
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‘Cause she thought she was in love (oh heaven’s above)?
Just what I was about to say, Adrien.
If my husband took photos of me in the shower, I doubt I’d demand that he delete them, because I’d trust that he cared enough about me not to show them to anyone else. Still it’s a dangerous thing to do even if you trust the person who took the photos – I wrote a post a while ago about a husband who had private naked pictures of his wife on his phone. He left the phone at McDonalds, and the staff promised to “look after it” for him. Someone (presumably a staff member) evidently uploaded the photos onto the internet before he got the phone back… So on second thoughts, in the light of that story, maybe I would get my husband to delete the photos, but not because I didn’t trust him.
Presumably at the time the photos were taken, Bingle was in a relationship with Fevola and trusted that because he seemingly cared about her, he wouldn’t disseminate the photos more broadly.
And then I’m guessing that she probably forgot all about them until stories surfaced last week about the photos circulating around the Brisbane Lions football team.
Surely in the scenario that you paint here LE there is implied consent as I have suggested and the repeated claims that there was “no consent” is in fact spurious?
Like wise I wonder if there was ever any discussion between Bingle and Favola about what may be done with the images Because I would have to expect that in the absence of any explicit limitations that in law there would be no limit to what the copyright holder may do with the images?
I don’t know the intricacies of the law here and I would welcome the opinions of those that do
Sex Ed For Girls
Lesson #12
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Football dudes have sex primarily so they can tell their mates about it. It’s a form of alternative competition. They get all their jollies having 12 other guys jump on them in public and then taking a shower with them afterward.
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But they’re not gay. They’re not. No.
“I think you’ve misremembered the cross-examination”
No doubt whatsoever! I got the gist though…
Iain, the issue then gets back to lack of restraint, and Fevola’s lack of same. People have been taking dirty pictures of each other since forever, and before photography, painting them: secretly in societies where being sexy was a bad thing, openly in societies where being sexy was a good thing. As an example of the latter, look at the artwork in an awful lot of middle-class bedrooms in downtown Pompeii.
The point is, the artwork was in their bedrooms, or the pictures were never made public, and so on–much like the unwritten rule that the press didn’t write about politicians’ sex lives (so we never heard about Hawkie, or JFK and Marilyn, or Jackie and Aristotle until long afterwards etc etc). We have lost the civil restraint that once allowed us to draw a clean dividing line between the public and the private.
And now the civil restraint has gone, we recruit the law to do the job for us. And law is a broadsword, not a scalpel.
Iain, I note that a facet of Bingle’s claim is “misuse of image”. I’m not quite sure how such a claim would be pleaded. I’m wondering whether it’s breach of confidence?
My analysis would be that Bingle initially did not consent to the images being taken, but once they were taken, she implicitly consented to Fevola keeping them on the understanding he didn’t disseminate them to others.
Fevola would have copyright and proprietary rights in the photos themselves, and as such, he would be entitled to do what he wanted with them…but he would be subject to other quasi-tortious duties (breach of privacy, breach of confidence, defamation etc). The extent to which they apply in this case is the $24M question.
I can see where you are coming from S L but surely if “restraint” is not actually expected or implicitly understood anymore then it can’t be enforced by the law?
And surely the lesson here is that no one should allow anyone to take intimate pictures of themselves no matter how much one may be “in love”.
No, that’s the point. If we lose existing civil restraint (a point that conservative commentators have been making since forever), then one way to achieve the same restraining effect is to recruit the law to do the job for us. In this case, unless the media body settles (and they often don’t; journos can be incredibly pig-headed), then this is a perfect test case for making the tort of invasion of privacy part of our law. It isn’t yet in Australia, although it is in the UK.
The net effect of a tort of invasion of privacy would be that news outlets would need to obtain permission from the party in question before publishing photographs of that party. It would kill the paparazzi dead (which has largely been the effect of the Mosley ruling in Britain). Now, lots of people might consider that a good thing, and 99 times out of 100 they’d be right… but what happens if photographs of a politician running on a transparently anti-gay platform engaging in gay sex emerge?
In that situation, the news value flips: instead of being merely ‘interesting to the public’ (which is the situation with the Bingle and Ettinghausen photos), it becomes ‘in the public interest’… but, if you have a tort of invasion of privacy, while there may be legal exceptions and defences built into the law (as there is with defamation), the politician will have a position from which to litigate. News organisations no longer have the money and power they once did (thanks to the internet) to defend litigation. It becomes easier not to publish. It’s just too hard, and too expensive.
All brought about by a failure to exercise restraint or, as my father used to say, by a failure to keep their powder dry and wait for the right moment and the right story.
“restraint” is not actually expected or implicitly understood anymore then it can’t be enforced by the law?
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Yeah in a police state.
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Talking of which:
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And surely the lesson here is that no one should allow anyone to take intimate pictures of themselves no matter how much one may be “in love”.
surely the lesson here is that no one should allow anyone to take intimate pictures of themselves no matter how much one may be “in love”.
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I’ll be less glib.
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Iain how, in the age of digital photography, are you supposed to keep people from doing this by law? It will require massive intrusion by the state into the private lives of people and/or ridiculously draconian punishments.
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And would such a ban then extend to the arts? Or would ‘professionals’ be granted exemption. And in that case would that not create even more of a guild atmosphere around the creative arts.
Why should we even consider such a response on the basis of this silly episode.
The lesson here is surely that there are rich spoilt bogan twerps who recieve too much attention. I half suspect this is a PR campaign designed to call attention to a somewhat ordinary model.
Adrien, fixed.
Out of interest I just looked at the photo. Jesus H Christ! What fuss over nothing. There’s a publicity shot of her lying on a beach that shows just as much. This is so facile it makes Carson Kressley seem like good conversation.
She looks like she’s objecting btw.
To be fair, I wouldn’t be pleased either, though if I knew my ex’s mates were all sniggering at this candid shot of me. Even if she did expose as much in swimwear shots, at least it’s her choice…she didn’t have a choice with this one.
I’m sure it’s partly a publicity stunt, but the principle remains that people shouldn’t do that kind of stuff.
For me, the most profound issue in all this is the one raised by SL about civil society’s increasing recourse to the state – the law, the courts, the police – to sort out very basic breaches of normal civil interaction. This is not only bad for all us who make up civil society, but it is an unfair and unnecessary extra burden on the police and courts, who surely have more important work to do. And thus an added cost to the rest of us.
This knuckle dragging footballer should have been dealt with by his peers. Instead of injunctions, and court actions for tortious damage costing hundreds of thousands of dollars, the footballer’s mates should have phoned him, and said “dude, that is not cool. Me and the boys have deleted those photos, and you had better not send them to anyone else.”
It is hard to overcome a somewhat contemptuous reaction to these WAGs, with their using their “status” to get into men’s magazines, TV commercials, and so on, but that’s their choice. The fact that one might prefer one’s own daughter did not make her career in “classy” glossy spreads in Zoo magazine or as an “escort” in no way means that WAGs (or any woman or man) who do choose that life have also chosen to be raped or given the green light to try to ridicule them.
Unfortunately, in this case, I support Lara’s recourse to the state, and I hope this cost’s the knuckle-dragger dearly if that will serve as a heads-up to the rest of civil society.
Forgive my blatant self promotion but it seems elementary to me that this whole scandal may be a put up job
Forget the civil law. How about the criminal law? Section 41C of Victoria’s Summary Offences Act says: “”A person who visually captures or has visually captured an image of another person’s genital or anal region must not intentionally distribute that image. Penalty: 2 years imprisonment.” There’s a defence of consent but the consent has to be to the distribution (or another distribution with the same purpose.) Note that this offence only applies to the photographer (presumably Fevola) and was only enacted in mid-2007. There are similar offences in some other Australian states.
Food for thought, hey? (Thanks to a JD criminal law student for raising the issue of Fevola’s breach of Victoria’s upskirting laws.)
Well, waddayano… you learn something new every day, Jeremy! That said (and please people, don’t put links to the full image in the comments; if you do I’ll remove them), I’m not sure if this photo shows the relevant pink bits…
Gah.
(I seem to be saying ‘gah’ a lot lately. Sigh.).
This knuckle dragging footballer should have been dealt with by his peers.
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He was. They bought him beers for a week.
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How about the criminal law?
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Doesn’t apply. It’s not a crotch shot.
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the principle remains that people shouldn’t do that kind of stuff.
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Yeah it’s terribly bad manners and it effects the relationships of people you don’t even know. Thanks to rohypnol rapists women are reluctant to let you buy drinks for them. The gods should send the shitty people with no sense of empathy to the Moon for a long holiday.
Jeremy, there you go! As I’ve said to you before, you can tell I’m a civil lawyer, can’t you? Hence your contributions are always of interest.
Adrien, I understand that the FULL shot does feature total nudity.
Actually, s41C applies to any photo of Bingle’s ‘genital or anal area’, regardless of whether there are any ‘pink bits’. Indeed, it would apply even if she was wearing underwear. And it doesn’t matter that the picture is of all of Bingle’s body, rather than just her ‘crotch’. The law was enacted in response to upskirting at the Australian Open, so it can’t be read too narrowly.
That being said, what exactly is covered by an ‘image’ of a ‘genital or anal region’ is quite ambiguous. My criminal law class spent a long time discussing this on Monday in trying to work out whether it would apply to those new nude image scanners that are being rolled out at airports.
Obviously, we can’t know without seeing the image that Fevola actually gave out (rather than the blurry and possibly cropped photos that have been published.) Alas, five minutes of diligent trawling of the internet with ‘safe search’ turned off has failed to find the relevant photo.
Indeed, it would apply even if she was wearing underwear.
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So the state will be prosecuting producers of swimwear catalogues?
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I understand that the FULL shot does feature total nudity.
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I’ve seen it she’s bent over and covering up. She’s not happy. I’m not sure why she didn’t demand the photo get wiped right away. Unless this is a PR scam.
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Apparently the gorilla’s footy club has talked to him and he denies distributing the photo. I guess it just fell out of the phone.
OK, if she managed to cover up, then there’s no offence under s41C. (Maybe an attempt under 41B, which bars taking the photo? But I assume the photo was taken during the 2006 affair and hence was before the crime was enacted. That’s assuming that it was taken in Victoria.)
As for the producers of swimwear catalogues, there are three reasons they can probably breathe easy: (a) is swimwear ‘underwear’? Probably not. (b) did the wearer of the swimwear consent to the distribution of the image in a catalogue (or, at least, a purpose that encompasses that?) Presumably, in most cases, yes. (c) Did the publishers actually take the photo themselves? Probably no, right?
Adrien, who knows, perhaps she did demand that the photo be deleted, and Fevola told her he deleted it (or would delete it in the future). Obviously he didn’t do so.
“Thanks to a JD criminal law student”
Oh no, credit for this astute pickup must go to either a mid-life career changing banker or a Hawthorn supporter!
*reluctantly concedes kudos… *
Hmmm…one wonders if Ms. Bingle will pursue both criminal and civil remedies?
Top post, LE, even if some of the underlying issues you raise have been largely lost in the discussion. I was particularly pleased to see the “Oh the slut had an affair with a married man” point summarily dealt with. In an extramarital affair, the person who is breaking vows and promises, the one who is implicitly or explicitly lying, the one who has done something Bad, is the married person. End of story. I wish to God someone would apply this simple formula to the hoo-ha here in Adders over Mike Rann, who wasn’t married at the time, and Michelle Chantelois, who was.
I find it interesting that when an unmarried man has an affair with a married woman you hardly ever hear this kind of vicious blaming. Probably because most of it comes from women who feel less secure in their own relationships than they would like to be and are projecting all potential blame onto the wicked, wicked femmes fatales.
In an extramarital affair, the person who is breaking vows and promises, the one who is implicitly or explicitly lying, the one who has done something Bad, is the married person. End of story.
Fundamentally I agree. But I also think it’s bad manners to conduct an affair with someone else’s spouse. Not to mention the soap opera.
But usually the other person (woman) gets the blame. Partially because it’s easier.
The Mike Rann story hasn’t made its way to the UK (or, perhaps, even around the rest of Oz), PC. What happened? Is it recent?
SL, Rann is alleged to have had an affair with a waitress (Chantelois) who was at the SA Parliamentary cafe (from what I recall). Chantelois’ husband got cross and wrote some angry letters to Rann, and later assaulted him by hitting him in the face with a rolled up magazine. Rann maintains he just flirted with the woman.
(PC, correct me if I’m wrong. Incidentally, I just read some Peter Temple books – very much enjoyed ‘em – thinking of the post you had a while back on detective novels and things)
Thanks, LE, that kind of sums it up. The magazine in question was Wine State or some such — a very South Australian touch.
I got to interview Peter Temple for his Adelaide Writers’ Week session last Sunday — he was very interesting and very funny in a dry, black sort of way.
Hmm, now I see why Bingle didn’t sue Woman’s Day – definitely a case of not wanting to bite the hand that feeds you.
I’m sure that on one level this is a cynical attempt to revamp Bingle’s career, but I’m also sure on another level that (a) these photos shouldn’t have been passed around and (b) the passing around of them is hurtful to Bingle.
I’m now convinced this Bingle thing is one big PR campaign. Someone’s pushing their property. Yesterday’s mX featured two stories on Bingle! One was (a bit) ‘critical’ considering whether she was a feminst avatar or not, whether she deserved her fame and concluded that a feminist, interestingly defined as a woman who supports other women, shouldn’t criticize her; the other, on the front page, was about her cricketer boyfriend rushing home to comfort her in her ordeal. Wow! Don’t we all need to know that. We’re also told she’s become a national obsession. I know I haven’t been able to think of anything else. Snore.
There’s stories on the internet this morning. I don’t have a TV but I’d be surprised if she hasn’t been mentioned.
This is a classic PR campaign. There’s a range of angles and soundbytes made available for ‘news’papers to engage in idle gossip about.
This is all just one big gimmick to insert Bingle into the public consciousness so she gets some kind of job. She probably will. Something like Dancing With the Stars, something that requires no talent other than a face that’s reasonably symmetrical and familiar.
Considering how nefarious the daily chores of so many in the PR/adverising business are it’s truly amazing we tell lawyer jokes.
How ’bout this:
Q What’s the similarity between an Account Exec and a human being.
A. You got me.
What’s the difference between a lawyer and a copywriter?
Sometimes lawyers lie for good reasons.
I noticed in the front page story some airhead HR lacky called ‘Clare’ commented negatively on the fact that cricketer boyfriend came back to be with her, noting that it is wrong to put personal life over professional life.
This made me rather cross, and lacking the ability to stick a cockroach in the mouth of said lacky I stuck the paper in the bin and went back to reading ‘Smile or Die’ (a commendable read, while we’re veering off topic…).
noting that it is wrong to put personal life over professional life.
Hah! Second time he’s done it. Sorry-ass pussy-whipped mo’fucka!
The photos tell the story. If you boot up Yahoo today there’s a picture of Bingle and Clarke. Look at her. She’s vamping for the camera: Sydney surf-chick mode. Her make-up, the lighting, the expression. This is a professionally contrived photo. He seems bewildered to me.
Click on the story and you get the latest episode of the soap opera, designed both for people who love her and hate her. Hatred’s a marketable commodity. Bolt and Blair make as much kudous from the people who hate their guts as those who love ‘em. More maybe.
The story carries one link to Bingle photos. I didn’t bother. She’s commonplace; this shit rots our brains. We should just stop buying it. D’uh!
Well we know that. Don’t we.
They don’t. Of course.
Lara Bingle again. Someone at mX might be bonking her agent: Max Markson.
How good is that? Max Markson. I bet he wears Armani Black; poloneck and designer shirts, no tie.
I suspect a typical Sydney revenge scenario’s at play too. Depends on whether Favlova gets burned. She won’t front for an interview.
Adrien: Favlova. That is all.
A nice take down of Peter Roebuck’s appallingly misogynist piece on how the little wife should just sit and home while her husband does the important job of playing cricket at In A Strange Land.
But of course it is those nasty conniving yet airheaded women at fault and at base.
Who would’ve thought!? D’uh.
Alicia, well it all started with Eve and that apple, didn’t it? It’s never the guy who does it, always the woman’s fault.
Really love your blog. We tried to find a cause of action for the Bingle bungle at our blog too
http://fortnightlyreview.info/
But of course it is those nasty conniving yet airheaded women at fault and at base.
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Mmm I didn’t mean it that way. Bingle’s sex is incidental. She’s a Media Creature. They’re all nasty and conniving regardless of sex, sexuality, ethnicity or taste in shoes.
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mX ran a story on her every day for a week, she made the headline in The Herald-Sun at least once, Woman’s Day, New Idea.
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My guess is that this Max Power agent guy has a strategy. We’ll see Ms Bingle in some major ad campaign or TV Trash soon. The Fine Art of Making So Very Little Go A Very Long Way.
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I have to add that, despite the fact that it’s pure trash, I quite like mX. It’s a News Ltd plug a hole in the market thing. The people there have made it viable by working very hard. It’s a shame they’re brains can’t be put to some actual good.
You like Favlova. How about Dingle and Favlova. Pity they ain’t together no more. They could double date with Vile and Tacky.
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Make a reality show out of it. Call it: The Ugly Australians. Derryn Hinch, a regular guest star.
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