St Kilda footballer obtains injunction to restrain publication of nude photographs

Posted by Sandip Mukerjea

The ongoing saga between members of the St Kilda Football Club and a 17 year old female supporter who claimed earlier this year to be carrying one player's child found a new stage this week – the Federal Court of Australia.

In what has been a remarkable endorsement of the power and reach of online social media, much of Melbourne was fixated on their computer screens on 20 December 2010, as the girl in question intermittently posted nude and semi-nude photographs of three St Kilda players on various platforms, including Facebook, Twitter and Formspring.  By early evening, one of the players concerned had obtained an interim injunction from the Federal Court, restraining both Facebook and the girl from further publishing the relevant photos or any other photographs.  The matter is due to come back before the Court for an interlocutory hearing on 23 December 2010. 

Monday's events raise a number of interesting and vexed legal questions concerning rights of privacy and free speech.  Many of these issues have been canvassed by us previously, including during our Melbourne office's CLE week earlier this year.  We'll bring you some further analysis on these issues in the coming days. 

Of more immediate interest is the effectiveness of the current injunction.  Facebook took swift action to close down the girl's account once served with the injunction, in the process removing the photos from its website.  In stark contrast, the girl has stated publically that she is yet to be served with the injunction, and that she proposes to release further photos involving other AFL players in the coming days. 

The law in this area is quite settled.  A person with knowledge of the existence and contents of an injunction, but who nonetheless engages in conduct which has the effect of frustrating the terms of that injunction, commits a contempt of court for which significant civil (and possibly criminal) penalties may be imposed.  The contrasting responses of Facebook and the girl highlight the difficulties faced by plaintiffs where a defendant is unperturbed by legal constraints and the possible consequences of his or her own actions.  In such circumstances, the injunction may not be worth the paper it is written on, in terms of its effectiveness in preventing further harm to the plaintiff.  Similar enforcement issues are faced by plaintiffs who obtain injunctions against websites based overseas (although, in this case, Facebook has elected to comply with the terms of the interim injunction).

A related issue which the plaintiff will need to deal with at the hearing on 23 December , is whether the injunction ought be continued notwithstanding that the relevant photos have spread, virus-like, across the world wide web.  Again, it is settled law that equity will not intervene to grant injunctive relief to restrain the publication of material that is already in the public domain.  In such cases, damages are considered the more appropriate and adequate remedy.

The question for the Court will be whether the spread of these images on social media websites, online discussion boards and chat forums, constitutes the entrance of those images into the public domain.  In a recent case, coincidentally also involving AFL footballers, the Victorian Supreme Court held that the disclosure of confidential drug test results pertaining to three AFL footballers on various internet chat forums, discussion boards and even on a subscription television channel, did not constitute the passing of that information into the public domain, as the information had yet to be published through any mainstream communication channels, for example, on free to air television or in a reputable newspaper. 

That conclusion may seem at odds with a 21st century society seemingly obsessed with online social media.  Any such inconsistency will need to be addressed by the Federal Court on 23 December – assuming either Facebook or the girl show up.

Partner: Paul Kallenbach