Dikileaks – Saints, Sinners Or Both?

In the latest instalment of high profile internet privacy scandals involving celebrities, lewd and explicit photos of Zac Posen, Nick Riewoldt and Nick Dal Santo have been posted on the internet by a 17 year old teenage girl, in what appears to have been a well prepared and executed strategy.

It is an ironic reversal of roles from the Lara Bingle situation with the public witnessing embarrassing photos football players would prefer not to have circulated on the internet. The Lara Bingle episode reveals how ready society is to demonise a woman when it is her privacy which is breached. There appears to be little sympathy for the young girl as she is the person breaching privacy.

The outrage of the AFL is unsurprisingly dramatically greater with regard to these photos than it was with respect to the plight of Lara Bingle, who quite legitimately felt aggrieved by having her privacy breached by images disseminated widely on the internet.

The AFL and the AFL Players Association have acted quickly and decisively to rein in any damage.

The early immodest photos of Nick Riewoldt and Zac Posen reveal two Saints seeking relief, in what may be mistaken by some as an advertisement of sorts for safe sex, with Posen holding what has been described as  a  condom in his hands.

Whilst the beleaguered players appear clearly attired for one type of relief, AFL Lawyers wasted little time in scrambling to the Federal Court to obtain legal relief in the form of an injunction to prevent further embarrassing photos being divulged.

The AFL have sought restraint restraint in Court, when perhaps they would have been better served by a demonstration of restraint on the part of some of their players. There are several possible legal and practical options, the success of which depends partly upon factual determinations which are yet to be made as to what actually transpired.

Nick Riewoldt’s claim that he hasn’t met the teenager is vigorously contested by her.  She claims she personally took all of the photos of the players herself with her own camera after having stayed with Sam Gilbert for a week. The girl claims that Gilbert was the father of her stillborn child.

Riewoldt says the nude photo of him was taken by a teammate as a joke, and thought the photo  had been deleted. As reported by the Sydney Morning Herald, the AFL and police apparently interviewed the teenager whilst still a high school student, following her allegations that she had become pregnant to a St Kilda player. Police apparently elected not to take any action due to them having arrived at the opinion that no  unlawful activity had occurred.  Having sex with a minor is clearly a crime under certain circumstances. Once again the issue of whether the girl gave her consent under all circumstances, whether that consent was valid and continued throughout the duration of her liaison/s with a player/s is something that hasn’t emerged yet from the facts.

The Police are not making the distinction between whether there was insufficient evidence to lay charges or ‘whether a crime occurred‘.  It isn’t known whether DNA was taken from the child who was stillborn or any evidence at all was preserved.

Leaving aside the issue of whether a crime has occurred, there are issues of moral propriety and the appropriateness of  a football player or players’ behaviour as the case may be, particularly with respect to sexual relations with young females and women.

If Gilbert turns out to be the father, the girl would have had a legal entitlement at least to some payment for her childbirth expenses and ongoing maintenance claims.  Whether or not she received any support for the pending birth is unknown.

The teenager states that she conceived the child at the age of 16 after meeting the players at a school clinic on the Mornington peninsula. She conveyed that her threats to release further photos were driven by revenge and she was  intent on releasing further similar  photos of other AFL players

It is not yet entirely clear who took the photos or under what circumstances at this point in time.

The success of the AFL’s attempts also hinge on the legal, political and practical realities of publication in an internet age.  Legal proceedings almost always ensue as a result of mistakes made out of court, with lawyers,  Judges and other ‘players’ with a stake left to straighten out the mess in the best way they can.

The AFL is left with very few tenable options. All options have potentially negative ramifications.

These political, public relations and practical consequences require a very carefully calibrated response, whilst the seventeen year old,  due to her personal involvement, seems to be struggling to process the situation she finds herself in.  She has clearly articulated her own sense of outrage.

The dilemna is an object lesson for all organisations trying to decide what to do when these types of situations arise, in terms of how to plan ahead and carefully map out a strategy to mitigate damage, whilst also taking into account the aggrieved individuals’ response.

When asked by an ABC journalist what would stop her from releasing further photos the teenager who feels wronged by the AFL, Victoria Police and St Kilda, responded “nothing except an apology from the AFL and St Kilda“.  She wants her grievances with the club and the AFL to be appropriately addressed.

The question is why the girl took vigilante action, and whether releasing the private information was the only valid course she saw open to her to address what she perceived as a gross imbalance of power.  There may not be any public interest defence to an action for breach of confidence as skepticlawyer points out,  however we are talking about a 17 year old girl who, on her own admission, feels she has been poorly dealt with.

The AFL could attempt to squeeze blood from a turnip, an almost certainly impecunious under aged girl. The AFL could could also try to seek criminal sanctions against her, depending upon what actually happened,  however this may martyr her.

The AFL’s outrage seems  somewhat hypocritical in contrast to their  attitude towards taking possible disciplinary action against players who allegedly had sex with an underaged girl.

If the girls’ allegations prove to be true, and with statutory rape being a serious offence, it seems appropriate that the players at least be disciplined.

The girl had posted the first photos on Facebook, moving to Twitter prior to it being shut down. As demonstrated in the Cairns v Lalit defamation case, it is extremely difficult to estimate with precision the extent of publication on a social media platforms such as twitter.

Facebook closed her account after 8pm, however her response was to post a link to Twitter to the scandalous images, which was finally removed by 9.20pm. However by that time, the images were widely accessible on the world wide web.

At 9.50pm, she pointed on Twitter to her friend’s Facebook account, which featured the Riewoldt photograph as she continued to sweep up new friends. Her Twitter account was shut down after  10.30pm.

Justice Marshall in the Federal Court of Australia issued an injunction that the girl be restrained from publishing or continuing to publish the photographs until further order. St Kilda claim the order was to protect their players privacy against the unauthorised and illegal distribution of images.

The girl has defied the injunction. There was a tacit acknowledgement that she was officially aware of the Order made against her in her conversations with reporters.

As the Iranian riots revealed, as a practical matter,  it is much easier to get information out on the internet than it is to stop the flow of information. The Internet has arguably become one of the most important public forums and the most powerful tools available due to it’s interconnectivity.

Many examples abound:-

1. One school girl versus a Commonwealth Court and the mighty AFL.

2. A few Iranian students versus the Iranian Government.

3. Julian Assange and Wikileaks versus the US Government.

Experience seems to show it might not be possible to stem the flow of information, and the balance is heavily tilted in favour of facilitating the dissemination of information compared to the person or institution seeking practical or legal means preventing the publication of information.

The game is heavily rigged in favour of people trying to publish information against those who are trying to prevent it. Once a critical mass has been achieved, and information has gone viral, as a practical matter it is impossible to contain and round up all the copies which have been distributed.

Depending upon the facts of the case, the possible range of legal actions which could be implicated including  breach of copyright, breach of confidence, defamation, extortion, contempt of court,  computer trespass and breach of the Surveillance Devices Act. The Act 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.

If police are able to establish that the girl stole the photos in the manner in which the Saints allege, the so-called upskirting laws prohibit the visual capture and intentional distribution of photos of another person’s genitals apply.  There is an element of irony in the spectre of the 17 year old teenager being labelled as an upstart upskirter against the St Kilda Football Club.

s41C of  state legislation, namely the Summary Offences Act 1966 (Vic) states that a person who visually captures or has visually captured an image of another person’s genital or anal region must not intentionally distribute that image. A penalty of two years imprisonment can attach to such conduct.

Justice Marshall’s restraining order applies until 4pm Thursday, and the hearing of the matter in the Federal Court is to resume on Thursday morning. The Order extends to all media concerns and any private individual who published the images.

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One Response to Dikileaks – Saints, Sinners Or Both?

  1. pacelegal says:

    MARY MAN

    I thank you and the person who apprised me of the typo and convey my apologies to the said Mr Zac Posen for my mistaking a St Kilda Footy players with a designers. Crossing my fingers that nobody gets confused. I wouldn’t want to imply sponsorship, affiliation or endorsement by the players of his dresses. On the other hand I have been arguing that the players need a dressing down of sorts, although hopefully not a repeat of the kind of dressing down we have been exposed to thus far.

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