There is an interesting piece on Crikey involving the legal issues which have been briefly canvassed in previous posts (here) . The purpose of this article is to discuss a couple of aspects of the civil claims proposed by AFL Lawyers against the 17 year old girl at the centre of the legal furore.
AFL Lawyers have foreshadowed instituting legal action against the girl relating to her internet publication of nude photos of Nick Riewoldt, Sam Gilbert, Zac Posen and Nick Dal Santo.
Interestingly Sam Gilbert instituted the action for the interlocutory injunction for the Federal Court, having claimed to have been the author of the photographs. This position is one which is contested by the teenager. Copyright infringement appears to be the basis for the current injunction based on media reports, although without access to the judgement it is difficult to know upon what basis the Judge was prepared to grant the injunction and what factors were persuasive in causing him to arrive at the decision that the balance of convenience weighed in favour of Sam Gilbert.
In terms of any future actions this raises questions as to which parties will have standing for any other causes of action and the right to obtain relief for damages. There are joinder rules under the rules of civil procedure which enable parties to be joined as parties whether as plaintiffs or defendants in any cause of action where a Court deems it appropriate to do so. It does however raise questions of who has standing to sue for the various causes of action which have been raised in relation to the publication of the photos.
A few comments on some of the legal aspects which havn’t previously been discussed about the cause/s of action proposed:
1. For practical purposes it is very difficult to restrain the publication of material on the internet. There is precedent in Australia for refusing to grant an interlocutory injunction in recognition of this. In Macquarie Bank Ltd v Berg  NSWSC 526 the Plaintiffs’ application to restrain publication of alleged defamatory material was refused by the Court.
The Court’s objection to granting the order was that it would have the effect of restraining the publication of material in every single jurisdiction in the world. The case wasn’t applied by the Judge in granting the interlocutory injunction to restrain publication to the AFL. There are specific criteria which are weighed in the balance when a Judge exercises their discretion as to whether to grant an interlocutory injunction restrain publication of further material prior to trial.
In Macquarie Bank, an application by Plaintiffs to restrain publication of alleged defamatory material about the Macquarie Bank on the internet was refused, as the Court stated that they if it granted the request, their order would for practical purposes operate to restrain publication in every single jurisdiction in the world.
The Court was loathe to impose NSW law upon the rest of the world. According to the Dow Jones v Gutnick case, defamation takes place where internet content is first viewed by the reader, not in the jurisdiction in which material is hosted on the server.
It cannot be assumed that NSW defamation law is the same as US defamation law (or “the law of the Bahamas, Mongolia or Tazhakistan”) as the Macquarie Bank Court pointed out.
Arguably the pictures the subject of the injunction in the St Kilda photo scandal had well and truly already entered the public domain by virtue of being widely circulated over the internet. However once again the Judge exercised his discretion to grant Gilbert the interlocutory injunction to restrain further publication.
2. The unreported judgement in Ettinghausen v Australian Consolidated Press, referred to by the St Kilda Football Club may provide the most promising legal action in relation to the publication of the photos. However this depends on all the facts and circumstances under which they were taken, and the interpretation of unresolved legal questions in the Ettinghausen case by a Court of law.
The action for breach of confidence was accorded recognition in the case of Australian Broadcasting Corporation v Lenah Game Meats, where it was established that photographic images which had been improperly or illegally obtained could qualify as confidential and be subject to obligations of breach of confidence.
As discussed elsewhere in Giller v Procopets  VSCA 236, a more recent Australian breach of confidence case involving the revenge publication of nude photos of a man’s de facto, Maxwell P called for the need for a tort of the intentional infliction of mental suffering as has existed in the US for some time.
In Ettinghausen the ARL player was photographed naked under a shower at a time he was a member of the touring Kangaroos Rugby League team. Australian Consolidated Press (ACP) published the photo in HQ magazine which, whilst grainy in appearance, still managed to depict his penis to anyone looking at the photo.
Ettinghausens’ lawyers argued that whilst he knew the photographer was the official team photographer and thus consented to the taking of the photo (intended to be used in a book published for charity), he had assumed that the photographer would be more discerning in using decency and good taste in selecting photographs, whether either for insertion in the charity book or elsewhere.
At first instance in the Supreme Court of NSW, Judge Hunt held that for the defence of consent to operate, the defendant ACP had to show Ettinghausen consented to the publication of the photo in a context which conveyed the imputation he had acquiesced to a publication of the photo/s which revealed his penis.
It was his consent to the act of publication in that context which the defendant was required to prove, whether express or implied. In respect of implied consent, any implied consent to the photo being republished in HQ, wasn’t seen to be a valid consent to that act, and certainly not a valid consent to the reproduction of everything the photo might show.
So the Judge reasoned that although it was proven he had consented to the photographer taking the photo, that wasn’t deemed sufficient for the defendant to prove that he had voluntarily assumed the risk that the photographer would exercise such poor judgement and act so irresponsibly in not cropping or otherwise concealing the relevant section exposing his genitalia.
Judge Hunt even went so far as holding that even though Ettinghausen had consented to the reproduction in a magazine of a photo of him that had already appeared in a book in the course of publication to generate charity, it still couldn’t be proven that he would have consented to the publication in the HQ magazine.
Therefore, according to the Ettinghausen judgement, the consent of the person photographed is relevant to the publication of the imputation which it conveys. Therefore even where there is consent to publication of one kind, it is unsafe to assume that the person photographed takes the risk that the publication will occur which conveys an imputation that they wouldn’t have anticipated or agreed to.
The Ettinghausen case is what the AFL claims it is relying upon in addition to breach of copyright.
However, it isn’t safe to assume the AFL lawyers could successfully base a valid legal claim upon the Ettinghausen case. I believe Pauline Hanson tried to use the Ettinghausen case to bring similar proceedings when an embarrassing photo of her was published.
The reasoning of Judge Hunt in the NSW Supreme Court in Ettinghausen, upon a close reading, is very thin. There is very little, if any, substantive legal analysis as to how or even if the imputation pleaded by Ettinghausen had the capacity to expose him to ridicule. In defamation jurisprudence this equates to exposing one to ridicule and contempt.
There was nothing obscene about what was an ordinary photo of a footballer being photographed naked in a shower, which would suggest that it carried any imputation would which make a spectacle of Ettinghausen and therefore carried any defamatory imputation. This question of fact was never in fact answered in the Ettinghausen case.
Indeed this was precisely the problem that Lara Bingle confronted in proving that a photo of her taken in the shower could amount legally to defamation.
It may be a lot more difficult than the AFL Lawyers are suggesting for them to get home on the decision in Ettinghausen.
If simple nudity alone in a shower is capable of amounting to an defamatory imputation, then there is then an issue of a justification of defence whereby the publisher could argue in some states (prior to the reform of Uniform Defamation laws) that the imputation of nudity was true.
However the removal of the public interest element with the reform of defamation laws in 2005 operates as a legal out for invasion of privacy by virtue of the fact that it is simply a matter of proving the defamatory imputations about a plaintiffs’ private life are in fact true.
Once again each case turns on it’s own unique facts, however even if the Ettinghausen case could be used by the footballers , I don’t know whether the St Kilda Football Club’s Lawyers are as confident of relying on it to ground for successful civil action. I think there is a fair amount of legal posturing going on.
That leaves breach of copyright and of course if this legal avenue is pursued all that needs to be established is that copyright was infringed in the work or a substantial part of it, a work including a photograph under the provisions of the Copyright Act 1968. Where the copyright owner’s exclusive rights to publish, disseminate, and make the work available online is infringed an action lies against the person who has breached their rights under the Act. (see Copyright Ownership)
If it can be proven that Gilbert was the author of the photos he has the right to reproduce the photos and communicate them to the public online. If he is able to prove he did not give permission or consent for them to be reproduced or communicated he has an action for breach of copyright. There are exceptions for commissioned works for hire, and of course, where a person takes a photo of a person unless the photo was taken for private or domestic purposes unless subject to a specific agreement.
Persons other than the owner cannot just engage in the electronic reproduction of the photo and publish it on the internet without the permission of the copyright owner. There are defences of fair dealing in Australia although they are not as strong as those in the US defence of fair use.
There is precedent for misuse of image rights and clear privacy torts in other jurisdictions or breach of confidence actions which have a strong underpinning in human rights conventions. Whilst Victoria has a Charter of Human rights which recognises a right to both privacy and freedom of speech, it doesn’t grant rights to citizens to bring legal action and it’s operation extends only to public authorities. Privacy rights in relation to both individuals and celebrities are accorded stronger protection in Europe than in Australia.
For instance in Mosley v News Group Newspapers  EWHC 17777, it was held by a court the plaintiff succeeded in an action for breach of confidence in relation to tapes published of sexual activities partaken in in privacy with prostitutes. The tapes consisted of sado-masochistic activities involving orgies. The Plaintiff was the President of a large automobile company and objected to the tapes being published both on and offline.
The Court held that he was entitled to a reasonable expectation of privacy regarding information already published, the reasoning being that sexual activities partaken in on private property between consenting adults are private. The Court agreed with this sentiment in their ruling however added that this was only the case where there is no question of exploiting the young or vulnerable.
It was defence counsels’ contention that what transpired was partially illegal in terms of the Nazi concentration camp group sex orgies, and that the Defendant had committed offences such as assault occasioning actual bodily harm and brothel-keeping.
Under different actions the rights to control images from being published has been accorded judicial recognition to Michael Douglas and Catherine Zeta-Jones, Naomi Campbell, Tiger Woods and Kate Middleton amongst others with respect to any unauthorised publication of photographs relating to their privates lives. In an case unrelated to the Fevola incident, Lara Bingle brought action privacy laws and under the Trade Practices Act when revealing images were published of her by an online publication without her authorisation as it had a commercial effect on her modelling career as a swimsuit model.
However in Australia the law is in an unsettled state.
Meanwhile, Law Reform Commissions have recommended that legislation protecting serious invasions of privacy be enacted which recognise there is no automatic public interest in publishing a photo of Lara Bingle in a private setting having a shower.
However at the present time a common law tort of privacy is still in it’s infancy in Australia and the Courts have not yet recognised such a tort.