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.
- 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.
- 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.