Hell hath no fury like a woman scorned – Sexting and the St Kilda football team

By Legal Eagle

Sorry I haven’t been about much. It’s been nuts, literally.

But I thought I’d write about the furore which has arisen in Melbourne after a 17-year-old girl posted photos of nude AFL players from St Kilda football club in retaliation for alleged ill treatment at the hands of various players. The Age reported yesterday:

St Kilda Football Club was under extraordinary attack in cyberspace last night, with naked photographs of several of its star players going viral on the internet, despite a court order intended to stop their publication.

The club was rocked yesterday when a teenage girl posted the explicit photographs of captain Nick Riewoldt and Nick Dal Santo on her Facebook account.

The 17-year-old was the subject of an AFL investigation this year when she said she fell pregnant to a separate St Kilda player when she was a schoolgirl.

Last night, a Federal Court judge ordered that the teenager and Facebook remove the images. Facebook closed the teenager’s account shortly after 8pm, but she responded at about 9pm by posting a link on Twitter to the pictures.

That link was removed at about 9.20pm, but by then the images had gone viral and were widely available elsewhere on the web.

At 9.50pm, she pointed on Twitter to a friend’s Facebook account, which featured the Riewoldt photograph and was last night rapidly gaining ”friends”. But it, too, was shut down shortly after 10.30pm.

One of the photographs shows Riewoldt posing naked next to teammate Zac Dawson, who is wearing jeans and is holding out what appears to be a condom packet. The other shows Dal Santo in a more explicit pose.

”Merry Christmas courtesy of the St Kilda schoolgirl” is written across the photographs.

The problem for the players is this: once the image is out there, it’s really hard to stem the flow. An action restraining the girl didn’t work, because the photos were already in the hands of other people who were not restrained. Also, the girl showed a distinct lack of respect for the injunction, as she went on to defy it by publishing more photos. The law finds it difficult to deal with mass media, and if you’re dealing with a private individual with mass publishing capabilities rather than a newspaper, the difficulties are magnified. Unlike a newspaper, this girl apparently doesn’t care about her reputation or about being seen to breach the law. Today, it was reported:

[The girl] said she had not broken the law because she still had not been presented with any court order.

”I don’t really see myself as an outlaw, more like someone who actually stands up to the football players. In a way, I guess it’s kind of bad what I’ve done, but I’m happy with it as well because I know there’s a lot of girls out there who thank me for having the guts to actually do it.”

The girl has made it clear she is acting out of revenge. She claims to have become pregnant with a child – or, in some reports, twins – to a St Kilda player, but to have lost the pregnancy to stillbirth in October. She laid a complaint and there was an investigation by the AFL and by police that found no grounds to proceed with charges.

She has said she was partially motivated by abusive Facebook messages and voicemails from footballers that she had received over the past few months.

When her Facebook site was closed, the girl went to Twitter and posted a link to the pictures.

She earlier told The Age she was writing her autobiography – bridling at a suggestion that this might be a little early, at 17 – and is looking for an agent.

She said she was not concerned about what repercussions her actions would have on her later life. She said, ”I don’t really want to know what’s going to happen in the future. I take every day as it comes.”

It’s not clear who actually took the photographs. Another St Kilda footballer, Sam Gilbert, has said that he took them, however, the girl alleges she took the photos and uploaded them to Gilbert’s computer.

I wouldn’t be surprised if cases like this led to the enactment of privacy laws. The girl in question could be in all kinds of legal hot water so I can’t help thinking that she’ll regret her action in the future. The Lara Bingle episode shows that the woman gets demonised even when it’s her privacy which has been violated, and there would be even less sympathy for the girl in this case because she’s the one breaching privacy.

I’ve summarised much of the relevant law in two previous posts here and here. However, I’ll make a quick dot point summary below of the main legal issues raised, and what I think the likely outcomes would be.

Criminal liability

  • Section 41C of the Summary Offences Act 1966 (Vic) provides that “A person who visually captures or has visually captured an image of another person’s genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image”. This is likely to have been breached. There is a penalty of 2 years imprisonment.
  • Section 7(1) of the Surveillance Devices Act 1999 (Vic) provides that a person must not “knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity.” Query whether there was consent in this case? It seems that the players must have consented to the photographs from the nature of the photographs.
  • Contempt of court for disobeying court injunctions.

Civil liability

  • None of our statutory privacy laws would cover this situation. The Commonwealth Privacy Act 1998 (Cth) deals with obligations of privacy over information on the part of government organisations and large corporations, not individuals. The Victorian Charter of Human Rights and Responsibilities recognises a right to privacy in Article 13, stating that a person has a right not to have their personal privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The Charter also prohibits unlawful attacks on a person’s reputation. But it only covers the acts of public authorities, not private persons. In August 2010, the Victorian Law Reform Commission released the Surveillance in Public Places: Final Report which suggested that there should be two new statutory torts, one which deals with misuse of private information, and one which deals with intrusion upon seclusion (See Recommendation 22).
  • There is arguably a nascent common law tort of invasion of privacy based on breach of confidence after obiter comments by the High Court in ABC v Lenah Game Meats and by the Victorian Court of Appeal in Giller v Procopets (see also post here). If there was such a tort, it may have been breached in the circumstances.
  • This would be likely to constitute a breach of confidence, especially if cases like Giller v Procopets are anything to go by (where Ms Giller’s former partner disseminated images of himself and Ms Giller having sexual intercourse). Ms Giller was able to claim damages for mental distress falling short of mental injury, and the players might also be able to do so.
  • 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.
  • Finally, as this article in The Age pointed out, if Gilbert took the photos, he could sue the girl for breach of copyright.

Apparently this incident is being dubbed “Dickileaks”, in ironic reference to the recent Wikileaks release of American documents. One can’t really blame the girl for thinking that releasing private information about people is a legitimate course to take to try and redress a perceived inequality of power, particularly when many have been feting Wikileaks. However, as I said in a post on Wikileaks, there is an important distinction between breaching the confidence of governments and breaching the confidence of private individuals. It is presumed that governments are supposed to share as much information as possible with the public because they are governing in the name of the people. There is a defence of “public interest” for those who breach the confidence of governments. By contrast, there can be no public interest defence in a case like this. Clearly there is a lot of public interest per se (the girl’s Twitter account has suddenly burgeoned to have 2000+ followers) but that’s not the same as establishing that there’s a legitimate public interest in seeing pictures of the genitalia of private citizens. Obviously, in the heyday of the “Red Tops” in the UK there was a different attitude, probably as a result of Lord Denning in Woodward v Hutchins (1976), a case dealing with unsavoury allegations in the Daily Mirror newspaper about the private life of Tom Jones and other pop stars. Denning LJ said:

If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected … In this case the balance comes down in favour of the truth being told, even if it should involve some breach of confidential information. As there should be ‘truth in advertising’, so there should be truth in publicity. The public should not be misled.

Nonetheless, I don’t think this would succeed these days in the UK, particularly given the privacy provisions in Human Rights Act, and the way in which breach of confidence has been utilised to protect privacy interests in cases involving Naomi Campbell (Campbell v Mirror Groups Newspapers Ltd (2004)), Michael Douglas and Catherine Zeta-Jones (Douglas v Hello! (No. 3) (2006), although cf A v B plc (2002), a case involving allegations about the affairs and sexual exploits of a Premiership League footballer where it was said that there was a public interest).

What do people think? Is there a legitimate interest in taking revenge against footballers like this? Or is it an egregious breach of the rights of the footballers, being both criminally and civilly illegal? I tend towards the latter; no matter that the girl has allegedly been wronged, this is not the right way in which to take revenge.

45 Comments

  1. Posted December 29, 2010 at 7:08 pm | Permalink

    Another point is that under current legal arrangements, if Sam Gilbert had been foolish enough to maintain Miss X as his girlfriend for a year or two, she would have have been perfectly entitled to leave him at a time of her choosing and take half his house, car, boat and the seat out of his pants

    @Mel..Is that your expert family law opinion on the allocation of division of property and maintenance after a two year marriage Mel? .

    Did you learn that from a fatal attraction DVD Mel? The one where you saw some similarities between this girl’s plight and Glenn Close???

    Maybe you could watch it again and see if you can find something on maintenance and property division.

  2. PAUL WALTER
    Posted December 29, 2010 at 7:44 pm | Permalink

    kvd, just wanted to endorse that perceptive expression of thanks to Lorenzo, since am here also, for his link.
    not sure about his politics but he certainly does come up with some interesting stuff.
    as i understand it,much of goes back to the growth of the big Latifundia, in the wakeof the Punic wars- extremely unscrupulous, but allowed for the rise of a dominant class, the like of which Cicero discusses scornfully in his accountof his time as governor of Cilicia, re the likes of Pompey.
    theonly comment from SL I can find on the thread is back at 21, where she disavows us of the notion that much value is extant in the adulation of cut-outs, but the one about Assange, what was that about?

  3. kvd
    Posted December 30, 2010 at 3:29 am | Permalink

    Paul, that comment by SL was the conclusion to her very interesting post about the differences in legal systems with particular reference to that applying to Assange in Sweden. I took it out of context because I thought it was widely applicable to any public discussion of any particular case – where the “facts” are only half-known, and the public is thereby “invited” to fill in the blanks from their own personal histories.

    That said, I also very much agree with [email protected] above that you mention.

  4. PAUL WALTER
    Posted December 30, 2010 at 6:19 am | Permalink

    I see what you mean, kvd.
    No wonder people have to study it for years to make sense of it, but as SL says, its going to lead to all sorts of unforseen insights, given its methodology.

  5. Mel
    Posted December 30, 2010 at 8:11 am | Permalink

    “Did you learn that from a fatal attraction DVD Mel?”

    One of these days, when you’re older, you too will realise Hollywood movies teach us all we need to know about life.

  6. Posted December 30, 2010 at 10:23 am | Permalink

    “Did you learn that from a fatal attraction DVD Mel?”

    One of these days, when you’re older, you too will realise Hollywood movies teach us all we need to know about life.

    Yes I can see how they would be less taxing for you. The heroes, villains, and the black and white one dimensional characters.

    Get a copy of the First Testament of the Bible and you’ll get plenty of content that would fail our regulatory rule in Australia re: obscenity etc. Plenty of incest, murder, rape and other appealing themes for you Mel

  7. Posted December 30, 2010 at 12:51 pm | Permalink

    [email protected] – I’d hope [email protected] put the sarcasm quotes in too small a font.

    Also, the Saints players with attitudes to women like the key position players in YaHooWaHoo’s legendary team? Now you mention it…

  8. Posted December 30, 2010 at 3:14 pm | Permalink

    Mel seems to be behaving as if this girl is Lorena Bobbitt.

  9. PAUL WALTER
    Posted December 30, 2010 at 4:33 pm | Permalink

    106 and 103.
    Are these two people married?

  10. Mel
    Posted December 30, 2010 at 8:43 pm | Permalink

    “Mel seems to be behaving as if this girl is Lorena Bobbitt.”

    Naah, I was thinking Bobbie Battista http://www.youtube.com/watch?v=SbZkjdcl8OY

  11. PAUL WALTER
    Posted December 30, 2010 at 11:49 pm | Permalink

    Actually put me in mind of a ripping pom thing called “Broken News” a few years ago on SBS. Same patter cake routines played poe-faced and you wonder what the people in actual news rooms made of it.#108

  12. Posted December 31, 2010 at 12:47 am | Permalink

    I have just emptied a monumental amount of spam out of the spammer. If there were any legitimate comments in there, I didn’t check, so apologies if your comment went into the ether. We are all on holidays at the moment and will be back soon.

    Holidays are nice, btw. But then you all knew that already.

    In the meantime, please play nice.

  13. PAUL WALTER
    Posted December 31, 2010 at 4:43 pm | Permalink

    I do so like SL s “cleaning out the guinea pig hutch” approach to moderation.
    We will be nice kiddies and not king-hit the other tots in the sand pit, if it upsets the baby sitter..

  14. Posted January 2, 2011 at 1:05 pm | Permalink

    I do so like “SLs cleaning out the guinea pig hutch” approach to moderation.
    We will be nice kiddies and not king-hit the other tots in the sand pit, if it upsets the baby sitter..

    Interesting how the cleaning out of the guinea pig hatch involves leaving all the frivolity of ‘Fatal Attraction’ Movies and news hype intact, the kind of commentary that heads off all the legal issues that go to whether it may be likely Sam turned his mind to involving more minors in his plans for the big event.

    I think that his state of mind is legally relevant, although may you havn’t read the Facebook transcripts “and don’t care to”.

  15. Posted January 2, 2011 at 1:08 pm | Permalink

    Even in England where we know there are stronger laws protecting privacy the UK High Court has stated that where activities conducted in private between consenting adults are to be treated as private, the Court qualified it by stating that if such pictures involved possible exploitation of the young or vulnerable then the case may be different.

  16. Posted January 2, 2011 at 1:09 pm | Permalink

    Mosley v News Group Newspapers [2008] EWHC 17777

  17. Henry2
    Posted January 2, 2011 at 3:22 pm | Permalink

    pace,

    Im sure that SL just dumped ‘spam’ … nothing to do with the conversation at all. Just advertising and such.

    If there were any legitimate comments in there, I didn’t check, so apologies if your comment went into the ether.

    She didnty intend to moderate the conv … just asked us to play nicely. 🙂

    Regards,

    Frank

  18. PAUL WALTER
    Posted January 2, 2011 at 5:59 pm | Permalink

    Well, its my comment, Henry, but you are right- it was just a comment on the comment, an attempt at humour; no direct relevance to the thread topic.
    Personally, I think she was having a dig at the stanndard of commentary here -sorry friends (Sl/Pace Legal) we cant all be geniuses, gift3ed with scu presience that we have spare time to look down down form celestial height. injudgement of the glarpings and flounderings others who gravitate to these sites in the hope of good current affairs conversation and information, rather than endless vituperation.
    I actually felt you’d done a good job setting out much of the basis for the discussion, but you can’t keep out your own rancorous feelings and prejudices, rightly or wrongly acquired, so will instead contemplate how intemperate your response have been been to Mel’s scepticism and now apparently me, despite my attempts previously to indicate that I understand your viewpoint, as set out earlier in the thread.
    Maybe the tribunals had a point, concerning your (limited) capacity for objectivity, after all.

  19. PAUL WALTER
    Posted January 2, 2011 at 6:02 pm | Permalink

    Yeah I know some typos. Still some of you will get thepoint.
    There is no point trying to discuss gender issues with feminists.

  20. Posted January 2, 2011 at 8:10 pm | Permalink

    we cant all be geniuses, gift3ed with scu presience that we have spare time to look down down form celestial height. injudgement of the glarpings and flounderings others who gravitate to these sites in the hope of good current affairs conversation and information, rather than endless vituperation.

    Well what can I say?

    I am obviously not as eloquent. I thought that this was a blog about the law.

    I think we’d all agree if it were anybody but a Priest, Football Player et al, the sympathy and maligning of this girl just wouldn’t be there.

    However perhaps you are right..LOL.

    Maybe the tribunals had a point, concerning your (limited) capacity for objectivity, after all.

    @PW. Have you read the case? It doesn’t sound like it for there was no question raised regarding my objectivity. It was just alleged that I have multiple personality disorder (now dissociative identity disorder) a la Sybil.

    Now there is a nice little DVD for you all to watch. At least I got something exotic rather than political monomania Chines or Soviet style…:)

    Hey. Getting upset at a lecherous male is as common as dirt. Nothing unusual about it at all. As I said vigilante justice usually prevails. It has been happening since time immemorial and will continue to happen.

    So the media are having a picnic over it. Nothing like a media frenzy. If you don’t think there are any issues arising fair enough.

    Lets get back to Julian Assange. Some things disseminated through PCs are just more politically right than others, which is I think what the opinion piece was suggesting.

    As stated I didn’t see PILCH leap to the girls’ side with the same fervour.

    I think the phrase ‘hell hath no fury like a woman scorned’ is perhaps an appropriate starting point for a discussion, I think drawing analogies between ‘Fatal Attraction’ is just too funny to treat seriously. Well lets laugh then for a while, and lets laugh at the media.

    As for the legal issues I guess I don’t have the luxury of mixing in legal circles with legal beagles. Therefore my comments are uninformed. I do have to work so my comments may seem a little ‘crude’ and less erudite.

    I hope it isn’t unbalanced or “lacking in objectivity” to continue to pose those unanswered legal questions:

    1. Who has standing?

    2. Who are the parties going to be? Sam got the injunction

    3. Do you consider viral photos once disseminated as being in the public domain.
    If it is a copyright violation or judged under defamation or breach of confidence, but seems kind of pointless to go after everyone who has published or re-published (where multiple publication rule applies)

    4. Did Judge Hunt’s ruling in Ettinghausen really deal with the imputation conveyed by the photo was defamatory? Would the plaintiff get home on this?

    5. Is Macquarie Bank v Berg dead in the water?

  21. PAUL WALTER
    Posted January 2, 2011 at 8:54 pm | Permalink

    Well, I must say, that’s a better effort- more like the stuff you were writing early and mid thread, that seemed more interesting than jibes about Lorena Babbit and Glenn Close.
    But that was more between PL and Mel, altho it seems I’ve been caught in the crossfire.
    I really think you do not have multiple personalty disorder, or any thing the like.
    Just that requesite of paranioa in modern society that few of us are without.
    Be a bit more interested in what others try to say instead of seeking to find offence, particularly from men, and you may find you have more friends than you’d previously surmised.

  22. Posted January 2, 2011 at 10:14 pm | Permalink

    Well, I must say, that’s a better effort- more like the stuff you were writing early and mid thread, that seemed more interesting than jibes about Lorena Babbit and Glenn Close.
    But that was more between PL and Mel, altho it seems I’ve been caught in the crossfire.
    I really think you do not have multiple personalty disorder, or any thing the like.
    Just that requesite of paranioa in modern society that few of us are without.
    Be a bit more interested in what others try to say instead of seeking to find offence, particularly from men, and you may find you have more friends than you’d previously surmised.

    lol…Is that your medical opinion or your legal opinion PW? It was the legal opinion that I had MPD. So the question was asked “I think she has MPD. Do you Dr X?” ……I am rather flattered to be called MPD by a lawyer and seconded by a Doctor.

    🙂 i know this is a legal blog, well I thought it was. I have even seen people who are just plebs like me comment here and their comments are treated as valid and legitimate.

    However it is a little off base to start saying that you think the Tribunal was right especially since a Judgement isn’t available to you (unless of course someone has made it available online). Now that would be contempt of some kind as it is subject to suppression order.

    In any event this isn’t a blog on lawyers with MPD.

    I thought it was a forum post about privacy on the internet, the questions which arose from the Law Reform Commissions’ Enquiry, the emerging tort of privacy and breach of confidence as it has developed in Australian courts, and the relevance or lack thereof in relation to the AFL case.

    Maybe I am in the wrong place for this discussion?

    Can somebody point me back to where I can elicit some meaningful commentary from someone who knows what the law is. I mean my Lecturers did spark my interest in these questions and I follow their blogs, however somehow the discussion got hijacked by an obsession with Glenn Close and “Fatal Attraction”.

    I don’t know but I didn’t watch the movie as many times as someone else did.

    BTW I don’t have friends in legal circles nor do I surmise about it, because otherwise I would be surmising about imaginary friends. Then perhaps my sanity (or objectivity, or feminists views, whatever you like to call them) could be called into question..lol

    Ciao

  23. Posted January 3, 2011 at 8:03 am | Permalink

    [email protected]: Come on, surely Saudi Arabia is a feminist plot, letting feminists whine on about how the west is supportive of those who oppress women.
    😉
    Also, the assange case does seem strange as far as the procedures go, dodgy interviews, charges dropped, reinstated, etc. Very different from, say, polanski.
    There may also be prejudices at work – geeks traditionally viewed as undersexed, footballers traditionally viewed as oversexed and often exploiting starry eyed groupies. (but i doubt if there is the football equivalent of the band phenomenon – the crew slut).

    The age and history of the young girl involved makes the likely behaviour of the saints more scandalous, the story more attractive to tabloids, especially with golden-boy riewoldt involved, than with an older groupie and known bad-boys. (consider – fev gets drunk and disorderly – meh). Add in the novelty of facebook, the ability of people to look for the photos once they’ve gone viral, the way the msm would have checked google trends and seen the sales potential…

    Another infallible recipe for column inches and threads-of-doom.

    Sadly, the greater the scandal, the worse the alleged offences, the greater the publicity, the more the AFL machine wants to squash it rather than proceed on the merits of the case, even prepared to attack the less powerful girl if she puts a toe out of place. The MSM, from my limited tracking of the story, has seemed unwilling to criticise a powerful news-generating partner than it probably would have been for such strategies.

  24. Posted January 3, 2011 at 10:08 am | Permalink

    Ah yes, Julian Assange, Ulpian the 2nd Century AD Roman revolutionary feminist. This is very interesting, quite apart from the ‘YOU FAIL LAW FOREVER’ point.

    As I explained on the Assange thread, Sweden’s rape law is derived from Ulpian’s writings on rape. Ulpian was Prefect of the Praetorian Guard. Like many upper-class Roman men, he also had both a wife and a concubine. He just didn’t like rape, and didn’t think proving a negative twice was fair.

    And it is perfectly normal in a civilian system to have charges dropped and reinstated, and to deny the accused the right to enter a plea. In fact, this latter is considered an American encrustation and will often result in the accused (‘suspect’) being referred to a court appointed psychiatrist.

    Dave, the Swedish procedures are fine; in fact, the more I see of Assange, the more I suspect he’s a publicity-seeking, egocentric dick who doesn’t get that other countries have other legal systems that work perfectly well for them. And expect visitors to said countries to obey the local laws. Roman law is very hard on rapists and sexual offenders generally. It always has been. Believe me, Julius Caesar and Co were not ‘girlie men’. They really weren’t. Trust me on this.

    Julian Assange needs to wake up and smell the espresso.

  25. Posted January 3, 2011 at 11:12 am | Permalink

    [email protected] I found out to my surprise that I am three degrees of separation from Assange (the colleague of a lawyer friend had him as a house guest). A lack of a sense of social distance, an inability to register (or, alternatively, care about) other people’s signals, a big noting approach that rapidly sets of “creepy” alarms was the gist.

    Does not prove anything, of course, but does go somewhat to plausibility.

  26. Posted January 3, 2011 at 11:23 am | Permalink

    LE: If Bill Clinton’s problems and (more egregiously) the Polanski case did not demonstrate that “imbalance of power” critiques do not apply to the Virtuous, then the “blame-the-women” defenses of Assange will come as a surprise.

    Like others, I thought the treatment of Hillary and Palin during the 2008 Presidential campaigns proved just how deep the well of misogyny is, and how easy the “progressive” find it to dip into.

    On the positive, Michael Moore and Keith Olberman were forced to backtrack pretty swiftly, so perhaps things have improved a bit.

    As for the girl in the St Kilda player case, she is clearly angry, hurt and clueless. She seems to have no rudder to guide her actions beyond her own emotions. She has also clearly suffered far more than anyone else in the mix. It must be a terrible thing, to have so much pain and so little personal resources to deal with it, or to guide her actions generally.

  27. Posted January 3, 2011 at 12:41 pm | Permalink

    I think what SL meant was this: We are all on holidays. I have been taking my kids to the zoo and things like that. I haven’t had time to closely supervise threads. I presume my co-bloggers are in the same situation – also they live in the UK so they come on in the evening or early morning our time. Given that we are all sporadic in our administrative duties at the moment, we can’t stop threads developing nastily. All we can do is ask people to be polite.

    Note: Mel is a stirrer. He’s gotten me very riled before on a previous thread. However, he has intelligent points to make. Also we are pretty liberal in our comment policy: we let people comment as long as they’re not egregiously offensive.

    Personally, I got a bit upset at his comment @90 because it hit a bit close to home for me, but instead of biting this time, I walked away, and didn’t post until a few hours later until I’d calmed down. I have close friends who have tried to commit suicide by cutting their wrists, and I am someone who has had problems with depression at times. Consequently I don’t particularly like sneers about that kind of thing.

    One of the hard things about blog threads is that you can’t see someone’s reaction. And people read your comments quite differently to what you intended at times. If you’re having a discussion with friends usually they know your history and can read when you’re upset, but it’s not possible on a thread like this.

    @LE understand perfectly what you mean re: holidays. Makes perfect sense. I hate flaming and it goes back to the BB site cases. Besides you have to have a little bit of levity. I pack a lot into one day, and partly because I don’t have kids. Went through 15 years of trying, and working three call centre jobs to pay for IVF cycle after cycle was difficult whilst trying to sell online and do voluntary work (kids are everywhere to be helped). Now the time is over, but I’d be with kids in a heartbeat if I had theme. Instead I let the kids in from the heighbourhood whenever they want (7 times a day!!!) and try to fill the void. The extra money as a lawyer would have come in handy for more cycles of IVF. So yes I can’t relate as well to everyone else’s situation but I have friends with kids and sometimes I see kids everywhere lately, when I go shopping, and don’t see the shops for the kids (wood for the trees). Just another few cycles, might have happened. A salary as a lawyer and maybe…all in the past. Water under the bridge.

    That’s probably the greatest hurt anyone could ever throw at me, rather than silly comments on forum sites. I appreciate levity. I have to laugh because its better than crying 🙂

    Laughter gets me through a lot and I have friends, maybe not in the same circles as you, but friends nonetheless. I am proud of them and they complete me.

    However I do think that Mel does perhaps cross the line a tad, for we went from talking about hell hath no fury , where the boundaries of responsibilities are, taking charge of your own life, taking responsibility for mistakes, pushing through the difficult times and character to talking about PROSCRIBED behaviour.

    I think if I understood you correctly you were talking about some pretty serious stuff. I call that stuff that breaches rights of others, breaking the law, not moralising. Stalking etc.

    Sometimes black humour gets you through things like that but when speaking about someone else, in this case a 17 year old girl, I think sometimes there is a place for compassion and sensitivity. Maybe tact, but hey I am just a quasi-legal person on the periphery. Nobody can walk in anyone else’s shoes but we are talking about the law.

    We aren’t talking about glenn close. I don’t really get into box office movies much. They are black and white, and far less taxing than reality. That is part of their appeal. One dimensional stereotypical characters. Everyone who isn’t in law or hasn’t had any contact with it but is a wannabe lawyer or criminologist just has to understand Hannibal Lector. LOL.

    IF you do think about the implications of Glen Close’s character, the analogy is imperfect. Glen Close if I recall was the career power control freak with loads of money who thought she could have “everything”. She is more in the image of the ‘powerful’ except she turned into a “bunny boiler”. This kid is not so powerful

    She is not politically correct. As I wrote in my article and what the author touched on, she is not Julian Assange.

    When is it PC to use a PC to deliver your message?

    I think of the priests, authority figures, well resourced corporate interests, dictators in brutal regimes who use libel laws, scientologists who use copyright laws to stifle free expression or social commentary or whatever you think she was trying to do. I think she was a mixed up kid who wanted to get back and did something silly. I think she was hurt. I think she found herself a little overwhelmed by being under the fourth arm of Government, the AFL. Then she had to deal with the coppers who abused her.She didn’t actually make the complaint. The School found out she was pregnant and they made it for her.

    I think you can take the Lolita thing a bit far.

    However you do cross the line (of good taste, forget liberal expression on forum boards) when you start to refer to women who have had crimes committed against them as you spoke of as pariahs of a sort.

    Just my uninformed, unenlightened, non-legal opinion. As someone pointed out I am not in the inner sanctum of law and never will be. Maybe I have a chip on my shoulder but I see it a different way. I see it as the difference between poor judgement and women being second class citizens by virtue of their status in society.

    Stats on human trafficking and poverty will tell you that women are vulnerable, in war, in peace and especially from third world countries. If that is having a feminist viewpoint then call me an uber-feminist. I never saw it like that. It is just reality.

    I think we need to step back and question whether this kind of mentality is appropriate where someone steps over the boundary as in what you and I were talking about. After all, there are laws and I guess part of the pre-admission process in my day was your first duty is to the law.

    I don’t think it is a good idea to talk too much about our own personal situations. I think someone made that point, but on the other hand we all know that in the real world there are abuses against women.

    The other thing is that I do consider that remark about “maybe the tribunal were right about your lack of objectivity” strange and unusual. I feel it was a bit defamatory as there was no discussion or hint of lack of objectivity or judgement.

    Appreciate the thing re: tone, lack of visual cues. I mean we have all read about the Megan Meier cases long before the recent suicides, based on people’s reaction to things that are said on the internet. This girl was also talking about the reaction in the community to her, not just the abuse through Facebook.

    I don’t take offence at comments through forum boards, but have found the level of critique and civility is perhaps more akin to the level that I see through PW or yourself.

    I also think that some people here if they are going to pass judgement, could try to using plain english if they want to attract any kind of commentary.

    I can use that kind of language too (lol) but I would feel rather transparent and superficial. It does show a bit of insecurity to the average Rhodes Scholar let alone the average lawyer or social commentator.

    I guess it takes all types!

  28. PAUL WALTER
    Posted January 5, 2011 at 4:47 am | Permalink

    Interesting post script to this thread-Crikey’s latest seems to have taken up the subject.
    in the comments section is a detailed comment from none other than Pacelegal.
    The article had my focus back on the privacy component.
    I really cant see the justification for using intimate photos of people without their prior permission, in most of these cases.
    There is no “need to know/public service” component in what are basically, over time, a series of typically cheap and exploitative tabloid media stories with photos of celebrities (Ettinghausen, Bingle).
    Ok when people are out in public, but why is a person’s privacy at home or some where else non public, not attended to as effectively?

  29. Posted January 5, 2011 at 7:52 am | Permalink

    Like LE, it appears that I am also one degree of separation from Assange, this time from the Townsville end. While I’ve never lived in Townsville (although I have worked on the odd legal case up there), my sister lived there (and was prominent in the local trade union movement) for over 20 years.

    Back before Australia’s cricketing fortunes tanked, I’d have suggested it was cooler being one degree of separation from Mitchell Johnson, but now I’m not so sure…

  30. PAUL WALTER
    Posted January 5, 2011 at 8:23 am | Permalink

    They are not “lucky”, just now.

    Just watching Cook survive a catch appeal on 99, five minutes after the commentators were waxing on the extra two hundred plus runs Cook has scored after successfull appeals against dismissals, using replays, throughout the series.

  31. Mel
    Posted January 5, 2011 at 6:14 pm | Permalink

    “This is why I want a tort of privacy to be developed. ”

    Hear, hear.

  32. Mel
    Posted January 5, 2011 at 6:44 pm | Permalink

    LE says:

    “Personally, I got a bit upset at his comment @90 because it hit a bit close to home for me, but instead of biting this time, I walked away, and didn’t post until a few hours later until I’d calmed down. I have close friends who have tried to commit suicide by cutting their wrists, and I am someone who has had problems with depression at times. Consequently I don’t particularly like sneers about that kind of thing.”

    Me too on all counts, LE. But unlike Miss X, I’ve never made my problems someone else’s. FFS she stole photos and attempted to extort $20,000 from someone who did her no harm and who she may never even have met, namely Nick Riewoldt.. She is also harassing someone who dumped her. When men do this type of shit they quite rightly get no sympathy and end up in jail. Screw the double standards.

  33. Henry2
    Posted January 6, 2011 at 7:48 am | Permalink

    [email protected] ..
    Of course boys can get broken hearted, but they can’t get pregnant or have miscarriages. Maybe that’s where some of the sympathy lies.

    Regards etc.

  34. Posted January 7, 2011 at 8:47 am | Permalink

    The risks of sex are greater for women than men, which does indeed drive a lot of the dynamics. It is an issue where different-but-equal really is the proper principle, and that is a difficult one to manage.

    The visceral boys-are-bigger-and-stronger may also be playing a role, particularly given the boys involved are footballers, so outliers even among males.

  35. Mel
    Posted January 7, 2011 at 11:52 am | Permalink

    It depends on the circumstances of the pregnancy, folks.

    I’m aware of cases where a woman has said she was using contraceptives but wasn’t because she wanted to use her pregnancy as a source of power- “stay with me or you’ll never see your kid again and I’ll screw you for maintenance”. Undoubtedly, such a scenario is not common and I have no particular reason for suspecting Miss X did this but it can’t be ruled out.

    ps. Don’t get upset LE, I’m simply trying to point out that the possible combinations and permutations that fit what little hard evidence we actually have does not allow us to draw concrete conclusions in favour of one party or the other.

  36. Posted January 8, 2011 at 10:38 am | Permalink

    There is no “need to know/public service” component in what are basically, over time, a series of typically cheap and exploitative tabloid media stories with photos of celebrities (Ettinghausen, Bingle).
    Ok when people are out in public, but why is a person’s privacy at home or some where else non public, not attended to as effectively?

    It is a different philosophical perspective. The tabloid media in the US is more free wheeling. It may not be the best quality news in your opinion, and in your view, they may not express their views pitched to your expectations. (they may be targeting the level of a third grader).

    However we all know how broad the first amendment (except for commercial free speech). The burning of the flag was a very serious transgression and offensive action especially for anyone who served in the military. About as provocative as vilification.

    There are public interests at stake anyway. The bottom line is in the media as it stands today (especially the dying newspaper model), the pictures could very much make the difference between worth doing and not worth doing from an economic standpoint.

    lol..what good is press freedom if you don’t make it economical to publish (that was lame)

    If you cut off supplying the money to the press that is suicide. How many people are going to spend money printing off copies of newspapers.

    I don’t want judges making judgement about what is good or bad quality eg the Panel Case TCN Channel Nine v Case. The Judges aren’t fans of Dave obviously, his ‘target audience’ if you like. So they have a tendency to think there is no political point in publishing pictures of Hughes refusing to shake Howard’s hand …etc…etc… All of the fair comment defences failed.

    If you want Judges’ personal views to be irrevocably stamped on a piece of art so be it.
    I don’t

    Saying that those pictures don’t add to the quality of the story is a very subjective analysis and I’d probably agree with the Judges in most cases. However I wouldn’t want to go down the road of the courts (especially with our weak fair dealing laws) being able to make those kinds of judgements.

    Americans look at freedom of expression as close to being in absolute terms. I think the Commonwealth countries are struggling to figure out what they want to do with regard to press freedom.

    As they have discovered as Jefferson said long ago ‘there really isn’t such thing as a democracy without a free press’. (or something like that)

    There is public money involved here. There are grounds built using public funds, public school clinics paying for appearances of these guys. There is a lot of public money being exchanged by councils and a reflexive tendency of Government in Australia to fund sports and figure out a way of doing it.

  37. Posted January 8, 2011 at 10:44 am | Permalink

    As for her legal position this girl has plenty of potential legal actions which could be brought against her. However I think we all know it was all posturing and designed as part of a media campaign.

    there has been very little focus on her legal rights and the legal responsibilities of people at all levels within the AFL, the schools, the clinics, the leadership programs and everybody else involved.

    As I stated previously, I see the school’s duty of care as possibly extending beyond the gate. s48(8)of the Crimes Act 1958 is a possible avenue of statutory recognition of the common law.

    The AFL was in effect standing in the position of an “educator” (see s48).

    …and please don’t accuse me of being far fetched but supposing X footballer decided he’d take her and her friends to Miami on their american tours they could have a NY prosecutor sicked on them. (contributing to the delinquency of minor offences)….

    okay I am clutching at straws, however does anyone think s48 is apposite in this situation. Surely it is a statutory enshrinement which clearly articulates the common law responsibilities broadly and specifically.

  38. PAUL WALTER
    Posted January 14, 2011 at 8:29 am | Permalink

    Interesting sequel to this, if a story in the Adelaide Advertiser a day or two ago (13th or 14th Jan) is correct.
    The young woman has fessed that her version of the missing photos is fabricated.
    I wonder went on behind closed doors between thelawyers, to produce this outcome?

  39. Mel
    Posted January 14, 2011 at 6:15 pm | Permalink

    You certainly are clutching at straws, pacelegal. My intuitions have proved accurate; Miss X has now admitted she lied about the photos and has now lined up a book deal. She is seeing dollar signs.

    Women lack the physical power of men and this causes some (a small minority) to become incredibly good liars and accomplished manipulators. I think most of us have experienced these types of women in our lives, at least once or twice.

    Lest I be judged misogynist, let me point out that overall females are clearly more moral beings than men by at least one order of magnitude. I have always thought this. But averages always obscure some very interesting fine details.

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  1. By Skepticlawyer » On slut-shaming on February 27, 2011 at 9:06 am

    […] written before about the schoolgirl who leaked photographs of St Kilda footballers after she was scorned by her footballer boyfriend. […]

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