Clarifier

It’s the media’s ultimate Christmas gift — n-ked photos, embarrassed footballers and a net-savvy teenage girl. But the St Kilda photo scandal isn’t just holiday media fodder, and with the legal implications of the images’ release mounting by the day, Crikey decided to hit the books to find out the facts.

Do existing privacy laws apply?

Lyn Nicholson, senior lawyer with Holding Redlich, says there is no current privacy law to prevent an individual from uploading another person’s private information onto the internet. However, a court may issue an order to restrain them from doing so — as Justice Marshall of the Federal Court of Melbourne did on Monday to prevent the “St Kilda schoolgirl” from releasing more explicit images. But such orders are of questionable value in the digital age given the rapid and widespread diffusion of viral images.

According to Nicholson, the players featured in the images can argue there was a breach of confidence by the teammate who took the photos: “The obligation of confidence is the obligation owed by one person to another either express or implied. It is an issue in the St Kilda case as it is claimed the photos were confidential between teammates and not to be published or passed on.”

The fact that the teammate did not voluntarily release the photos, adds “a whole new level of complexity about unauthorised access to the images”.

Do they need reform?

In 2008, the Australian Law Reform Commission completed the report For Your Information, setting out 295 recommendations for privacy law reform. Importantly, recommendation 74-1 suggested federal legislation should “provide for a statutory cause of action for a serious invasion of privacy”, including: instances where an individual’s home or family life has been interfered with; where they have been subjected to unauthorised surveillance; interference with an individual’s correspondence or private communications; disclosure of “sensitive facts” relating to an individual’s private life.

Recommendation 74-2 consolidated the previous suggestion by urging the federal government to draft legislation to ensure an individual can legally establish liability by claiming there was a “reasonable expectation of privacy” or the act or conduct complained of would be considered “highly offensive” to the ordinary person.

“In the St Kilda case, as it was all amongst teammates, you could assume a reasonable expectation of privacy,” Nicholson says. Whether the release can be considered “highly offensive” is a separate matter, she adds.

Interestingly, the recommendation also suggested reform to ensure courts take into account the public interest when considering the claimant’s claim to privacy — presumably the argument favoured by Channel 7, which defended its use of the explicit shots during a nightly bulletin on Monday night because of “obligation to our viewers to report the news”.

Who can they sue?

According to Mark Pearson, Professor of Journalism at Bond University and author of The Journalist’s Guide to Media Law, the Andrew Ettingshausen case from 1993 set an important precedent for privacy and the publication of private images. The Sydney rugby league player won his claim against Kerry Packer’s ACP Magazines and $350,000 in damages (later reduced to $100,000 on appeal) after HQ magazine ran a n-de photograph of him taken and published without his consent.

Pearson said the case established an important defamation argument that could potentially drive a claim by the St Kilda players at the centre of the photo scandal: “They could sue whoever publishes them and, although their reputation may not be lowered, defamation also applies to ‘holding someone up to ridicule’ which was an important element of the Ettingshausen case.”

In this instance, Nicholson says a significant legal issue is the lack of consent to the release of the photos: “Publishing of the photos suggests the footballers gave their consent, and this could be taken to harm their reputation. For example, you could draw the inference that they are people who would consent to naked public images of themselves.”

The footballers could also sue the young girl, but given the nature of civil claims it is highly unlikely they would seek compensatory damages from a 17-year-old.

What other laws may apply?

Interestingly, the “upskirting” amendment to the Victorian Summary Offences Act of 1966 could come in handy for the St Kilda players featured in the disseminated images. As the Act states, the crime of upskirting involves “the unauthorised observation or capturing of visual images of the genital or anal region of a person’s body for other purposes”. As per section 41.B, anyone found guilty of upskirting could face jail time:

“A person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured. Penalty: 2 years imprisonment … The reasonable expectation test is an objective one — what would a reasonable person in the position of the person whose genital or anal region is being visually captured have expected.”

The Crimes Act of 1958 might also be applicable, if it can be proved the girl at the centre of the scandal obtained the photos illegally. As section 81 states, an individual may be found guilty of “obtaining property by deception” if they gain “ownership, possession or control of it, and obtain includes obtaining for another or enabling another to obtain or to retain”.

Also relevant: the Surveillance Devices Act of 1999, specifically section 7, which focuses on the “regulation of installation, use and maintenance of optional surveillance devices”. If it can be established in court that the players photographed did not knowingly consent to the images being taken, the individual responsible could face up to two years imprisonment or a maximum fine of more than $28,000.

Peter Fray

Save 50% on a year of Crikey and The Atlantic.

The US election is in a little over a month. It seems that there’s a ridiculous twist in the story, almost every day.

Luckily for new Crikey subscribers, we’ve teamed up with one of America’s best publications, The Atlantic for the election race. Subscribe now to make sense of it all, and you’ll get a year of Crikey (usually $199) and a year’s digital subscription to The Atlantic (usually $70AUD), BOTH for just $129.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW