Posted by Sandip Mukerjea and Paul Kallenbach
Events certainly do move quickly in the St Kilda Footballers saga. Since Minter Ellison’s 22 December blog post, the identities of the three footballers the subject of the now infamous nude photographs has been widely published. They are Nick Riewoldt, Zac Dawson and Nick Dal Santo. It has also been revealed that the applicant in the Federal Court injunction case is none of these players but, rather their team mate Sam Gilbert, who professes to be the person who took the photographs in question (an assertion contradicted by the ‘St Kilda schoolgirl’ who maintains that she did so).
Events certainly do move quickly in the St Kilda Footballers saga. Since Minter Ellison’s 22 December blog post, the identities of the three footballers the subject of the now infamous nude photographs has been widely published. They are Nick Riewoldt, Zac Dawson and Nick Dal Santo. It has also been revealed that the applicant in the Federal Court injunction case is none of these players but, rather their team mate Sam Gilbert, who professes to be the person who took the photographs in question (an assertion contradicted by the ‘St Kilda schoolgirl’ who maintains that she did so).
So what lies in store for the girl who, presently, is the first respondent in the Federal Court proceedings? Various legal avenues have been debated in the press in recent days, and we take some time in our final post of 2010 to comment on and consider some of them.
Breach of copyright
Perhaps it makes most sense to start with copyright infringement, given that this appears to be the basis for the current injunction.
In general, copyright is infringed if a work (or a ‘substantial part’ of that work) that is protected under the Copyright Act 1968 (which includes, among other classes of work, photographs) is used without the copyright owner’s consent in one of the ways exclusively reserved to the copyright owner.
Thus, if Gilbert can establish that he was the author of the photographs, then he will have a number of exclusive rights by virtue of the Copyright Act – including, most relevantly, the right to reproduce the photographs and the right to communicate them to the public. If he can then show that he did not give permission for them to be reproduced or communicated, his action for breach of copyright is likely to succeed.
Privacy / breach of confidence
Perhaps the best avenue of relief for the photos’ subjects (Riewoldt and Dal Santo) is a claim for breach of confidence.
On 22 December 2010, the AFL Players Association lamented the lack of adequate privacy laws to protect prominent individuals and members of the general public alike, including AFL footballers. Reference was made by the Players Association to the far stronger right to privacy in Europe and the United Kingdom
Arguably, however, there is already more than adequate privacy protection available to the St Kilda Footballers under existing Australian law. While our law does not recognise a right to privacy, nor has an American-style bill of rights, there are strong arguments that existing breach of confidence laws would be sufficient to grant the footballers protection in the current circumstances.
As early as 2001, in Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63, the Chief Justice of the High Court of Australia, the Hon. Murray Gleeson, stated (at [42]):
Certain kinds of information about a person, such as information relating to health, personal relationships, or finance may be easy to identify as private; as may certain kinds of activity which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.
The Chief Justice also stated that a photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, could still constitute confidential information, and thus subject to an obligation of confidentiality pursuant to breach of confidence laws.
More recently, in Giller v Procopets [2008] VSCA 236, the plaintiff had been involved in a de facto sexual relationship with the defendant, during the course of which the defendant recorded the plaintiff engaged in various sexual acts with the defendant and with the plaintiff’s knowledge. Following the breakdown of the relationship, the defendant disclosed the videos to various third parties, including members of the plaintiff’s family. The plaintiff successfully sued for breach of confidence. Both the trial judge and the Victorian Court of Appeal were quick to recognise that video recordings of sexual relations between consenting adults in private have the necessary quality of confidence to attract protection under breach of confidence laws. This finding was not altogether surprising in light of the Chief Justice’s comments in Lenah Game Meats.
In Mosley v News Group Newspapers [2008] EWHC 17777, the president of the Federation Internationale de l’Automobile was secretly filmed by a British tabloid newspaper engaging in an extra‑marital, sado‑masochistic sexual role play with several prostitutes. The recordings were made secretly by one of the women with the assistance of the newspaper using a camera concealed in her clothing. The video was published on the newspaper’s website and images from it were published in the hard copy publication.
Mosley successfully sued the newspaper for breach of confidence. The United Kingdom High Court concluded that Mosley was entitled to a reasonable expectation of privacy in respect of the information which had been published, on the basis that sexual activities are by their very nature inherently private and especially so when conducted on private property between consenting adults. Justice Eady endorsed the sentiment that:
People’s sex lives are to be regarded as essentially their own business – provided at least that participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.
Importantly, the decision in Mosley is consistent with the Chief Justice’s observations in Lenah Game Meats and with the decision in Giller v Procopets – notwithstanding the existence of stronger (legislated) privacy rights in the United Kingdom
That being the case, it would seem that both Riewoldt and Dal Santo should have solid breach of confidence actions against the girl. However, whether or not they are entitled to an injunction will depend (as we commented in our previous blog post) on whether the Federal Court forms the view that the relevant photographs have already passed into the public domain by virtue of their viral spread across the Web.
Defamation
In Ettinghausen v Australian Consolidated Press (1991) 23 NSWLR 443, the rugby league player, Andrew Ettinghausen, successfully sued HQ Magazine in relation to a feature article concerning the Australian Rugby League Team’s tour of Great Britain
- imputed that he had deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a widespread readership; and
- held him up to serious ridicule.
Ettinghausen succeeded in his action and received a payout of $350,000 which was later reduced on appeal to $100,000. Prior to the jury verdict, the New South Wales Supreme Court considered an application for the imputations to be dismissed. The application was refused. Justice Hunt considered that, notwithstanding it seemed clear that Ettinghausen had not posed for the photograph (that is, it was a ‘fly on the wall’ style photograph), the tenor of the article and surrounding photographs was capable of suggesting that he had deliberately permitted the photograph to be taken and then later published for the purposes of the feature article.
As for the issue of exposure to ridicule, Justice Hunt held that it was sufficient for a publication to hold a person up to serious ridicule, even if no blame or culpability is attributed to that person in the publication.
Riewoldt and Dal Santo may draw inspiration from the Ettinghausen case in any defamation proceedings they wish to issue. Indeed, Riewoldt’s carefully constructed words at a recent press conference appeared to have been taken directly from the Ettinghausen ‘playbook’. Riewoldt expressed outrage at the publication of the photographs and stressed that the photograph in which he appears was taken without his consent by his team mate only moments after he had got out of bed.
In any defamation claim, Riewoldt and Dal Santo would presumably rely on an imputation of serious ridicule or, alternatively, an imputation that they had willingly posed for the photographs and, in so doing, engaged in lewd or indecent conduct.
Theft / trespass
Assuming that Gilbert did take the photographs in question, and that those photographs were misappropriated by the girl (as Gilbert alleges in the material filed with the Federal Court), it is possible that the girl could be investigated and prosecuted for theft, and that Gilbert could bring a claim against her for trespass to goods. The latter action is actionable per se and, accordingly, Gilbert would not need to establish that he has suffered any actual loss.
Surveillance Devices Act 1999
It has also been suggested that the girl may be exposed to prosecution under the Victorian Surveillance Devices Act 1999. Under section 7 of that Act, it is an offence to knowingly use an optical surveillance device (which would include a camera) to record private activity to which a person is not a party. (Obviously, section 7 would only be relevant if the girl actually took the photographs.) The section does not apply, however, if each party to the private activity gave his or her express or implied consent to the use of the device – and the girl would no doubt argue that Riewoldt and Dal Santo each consented (either expressly or impliedly) to the photos being taken.
Partner: Paul Kallenbach
Thanks for this... very interesting indeed. I've always found it a little strange that the photographer has ALL the rights in a photo and the subject none.
ReplyDeleteIn any event, how to the sleaze-mag photographers get away with taking long-range photos of celebs on holiday or walking hand in hand with their new love-interest if the breach of confidence and surveillance devices act apply?
That's a very good question.
ReplyDeleteIn relation to the Surveillance Devices Act, it does not apply to photos taken in public spaces. That basically means anything that occurs outdoors, though it might also include things that take place indoors - such as at a public event.
As for breach of confidence, the position can differ depending on what country you are in. In Australia and New Zealand, for example, photographs taken in public, depicting what any member of the public might have seen for themselves, do not have the necessary 'quality of confidence' to attract protection. Given the absence of an independent tort of privacy, this means photos of celebrities taken in public, even if taken on a secluded beach with a long-range lens, are fair game.
In the UK and Europe, where breach of confidence laws are bolstered by the European Convention of Human Rights, which includes a right to privacy, photographs of this kind can fall subject to more rigid restraints. Princess Caroline of Monaco is one example of a celebrity who has used the European laws to good effect when unauthorised photos of her have been published.
The other thing not to forget is that most paparazzi photos tend to be taken in the USA and depict US celebrities. The privacy laws in that country are even weaker than in Australia, given the constitutional freedom of speech that exists in the US. Accordingly, celebrities in the US have fewer options and are generally unlikely to bother issuing proceedings in other countries in respect of any re-publication of photographs in foreign magazines and newspapers.