On 10 October 2015, to discuss “Footy and the Media: The Off-Field Game”, I joined host and Monash senior lecturer Bill Birnbauer, AFL head of content Matt Pinkney, media personality and former AFL coach Terry Wallace, and historian Tom Heenan as part of the New News Festival presented in partnership with the Wheeler Centre and the Centre for Advancing Journalism at the University of Melbourne. This post explores some views I expressed in the session.
For those looking for a synopsis of the session in bite sized pieces, courtesy of @CuriousEisha, please see here.
Media intrusion into the private lives of sports stars is becoming ever more blurred. Sometimes the public need to know is uncontroversial. Sometimes there is an uneasy sense that journalism has crossed the line.
When the boundaries are blurred, the law can help. However, sometimes the boundaries are so blurred that even lawyers can be confused. Community standards also change. Cases of yesteryear may not apply in the same way today.
The illusory difference between public and private
Take, for example, the meaning of privacy itself. It is a concept notoriously difficult to define. In a High Court case called ABC v Lenah Game Meats  HCA 63, Gleeson CJ observed that there was “no bright line” which could be drawn between what is public and what is not, and that the terms ‘private’ and ‘public’ were often used as a convenient method of contrast, essentially signifying nothing. His own views were hardly conclusive:
- An activity is not private simply because it is not done in public.
- Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private.
- Certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved may also be easy to identify as private.
- The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private: 
Further, in his final public address as Chief Justice of the High Court, Gleeson CJ said that he had begun to change his view that “certain things … were self-evidently private”. He added: “When you look at the kind of information that people publish about themselves it makes you wonder. I used to think that having a telephone conversation was normally private, but you can’t walk down the street without hearing a number of telephone conversations.”
How would Gleeson CJ feel about the rise of the ‘selfie’? In Lenah Game Meats he stated: “A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence”
That might have been the case even a decade ago. However, followers of Shane Warne appreciate that the bedroom is by no means a ‘no go’ zone. The bedroom is also the new place de jour for a post ‘best and fairest’ celebratory snap (albeit, some examples are very humorous!).
Drawing the line between public and private
For complainants who find it difficult to draw the lines themselves, the court of public opinion can sometimes help you work it out.
In 2010 Lara Bingle sued Brendan Fevola after he took photos of her nude in the shower and then allegedly leaked them to an “astonished world”.
We know Lara was determined to overcome her pain and embarrassment, and had launched a court battle to defend her dignity, because she told Woman’s Day all about it, reportedly for $200,000. Breathlessly, the magazine foreshadowed an Exclusive in which “This is Lara Bingle stripped bare – but on this occasion there’s a big difference. She is the one in control”.
To add to the irony of someone perpetuating their own public distress for a fee, Woman’s Day was the very same magazine which had published the compromising image in the first place.
Lara Bingle’s actions likely compromised the success of any legal claim. She ditched the law suit shortly after the Woman’s Day Exclusive appeared. Her conduct also likely compromised the way people thought about her, at least for a time.
The good old days when privacy was paramount
Justice Hunt, then of the New South Wales Supreme Court, would not recognize the manner in which many celebrities and sports stars court fame today. After all, he decided an important case on the assumption that people did not want to air their dirty laundry in public, something which seems so last century.
Justice Hunt decided a 1988 landmark case in favour of former Australian cricket captain, Greg Chappell, who successfully obtained an injunction restraining the broadcast of a story about him on the current affairs program, ‘A Current Affair’.
In Justice Hunt’s view, it was important to fetter the media to protect the public figure: “The Australian media is, in general, reasonably responsive to the need to permit public figures some degree of privacy in relation to their private behavior. Such a need arises [for a case like this] because, if every public figure is to become ‘fair game’ in relation to his private behavior which is unrelated to his capacity to perform his public duties, the community will suffer from an unwillingness of suitable people to enter public life”: Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, p.172.
So, why did Chappell sue and how did he win? Chappell took Channel Nine to court to stop a story from going to air about an alleged extra marital affair with a woman called Samantha Hickey (no relation).
The woman, who Chappell apparently met at a Brisbane nightclub, had sold her story to the now defunct News of the World for $25,000. The infamous Melbourne Truth newspaper had bought the Australian rights and already published several stories about it, including a risqué cartoon.
However, in a pre-Internet world, the prospect of a TV story meant the Chappell revelations would be splashed across Australia rather than to a niche segment of the Melbourne market. What to do?
Chappell sued in New South Wales and gained a sympathetic audience from Justice Hunt, who expressed dismay at the “sleazy gutter journalism” which had caused the case to come before him.
Defamation law at the time differed across state lines, and Justice Hunt had in his judicial armoury “the public interest test”, unavailable if you crossed the border to Victoria. If you sued for defamation in New South Wales, as Chappell had done, Channel Nine had to prove more than that the revelations were true. Channel Nine had statutory declarations from the woman involved but this was not enough. The network also had to prove that these revelations were in the public interest, in circumstances where ‘interest’ had to mean more than mere curiosity.
Justice Hunt found that public interest was not established, thereby granting the injunction. In his view, the revelations did not interfere with Chappell’s role as a public figure and retired Australian cricketer. This was not a case akin to say, a public official who stood on a platform of family values but had secret affairs. There was no ‘hypocritical component’ relevant to the performance of Chappell’s public status.
For an in depth look at this and other case studies, Roger Patching has published his doctoral thesis called “The private lives of Australian cricket stars: A study of newspaper coverage 1945 – 2010”. It can be found here and is well worth a look.
Legal protections for ‘privacy’ in Australia
Australia has no legal right to privacy per se. From time to time litigants try to introduce a new tort of a right to privacy. However, to date the High Court has not been persuaded that this is a good idea. Perhaps the difficulty in drawing a “bright line” means it is a task the judges consider better left to the legislature.
That does not mean that sports stars cannot sue. They just need to find the right cause of action. However, in 2015, the fate of these causes of action is more uncertain than ever before.
Defamation has been a popular option for the offended in the past. Former NRL star Andrew Ettingshausen is the clearest example for old school types, winning in the mid 1990s the then massive sum of $350,000 from HQ magazine for a double page spread featuring a photo of him, Ben Elias and Laurie Daley captioned “Shower Power”.
The photos were taken during the Kangaroo’s tour of England but, horrifyingly to Andrew, amidst the grainy shadows of the photo and beneath the superimposed text was what Justice Hunt described as: “A shape between the plaintiff’s legs which (despite the defendant’s submission to the contrary) is certainly capable of being interpreted as a penis”. In other words, it was not 100% obvious.
The jury upheld the imputation that people would think “the plaintiff 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 so Andrew Ettingshausen won the case.
The public reaction, even then, was somewhat astonished, and after an appeal the question of damages was reconsidered and reduced to $100,000.
Keeping in mind that to win a defamation action one must prove that the reasonably minded person might think less of you as a result of the “sting” of the publication, Tom Hughes QC, representing Ettingshausen, submitted that “[s]elf-respecting people don’t like being seen as a sort of a hunk of human flesh, a plaything”. Such a sentiment is unlikely to gain much support from social media enthusiasts in 2015.
Counsel for HQ, Bruce McClintock, expressed a view likely more in keeping with the times then and now, suggesting that the publication would have no effect whatsoever on Andrew Ettingshausen’s reputation, that the article accompanying the photographs was overwhelmingly positive, and that the nature and quality of the photograph meant that readers might not even have noticed the exposure of Andrew Ettingshausen’s appendage anyway.
Despite the fact that the Ettingshausen case seems somewhat stuck in a time warp, on the other hand, it does demonstrate the sympathy a court will have towards a litigant who has a consistently strong and positive public reputation, which is disturbed by a third party without their consent.
Breach of confidence
This cause of action is Australia’s de facto privacy law. It is deceptively simple: In short, if someone uses your confidential information without permission, the test of breach of confidence is satisfied.
This, of course, simply begs the question. What is confidential?
- The information must be private.
- The information must have been conveyed in circumstances where it is intended to be and the recipient knows it is private.
- The information must not be in the public domain.
Like all things though, there are questions of degree, and the courts must consider all the circumstances in determining whether there has been a breach.
For example, Lance “Buddy” Franklin has revealed that he is taking a pause from football to deal with mental ill-health, but the nature of that health issue has not been disclosed. Coach John Longmire reportedly said that the details are a private matter for Franklin, but he welcomed the ability to have a discussion about mental illness.
Lance Franklin’s willingness to disclose that he is suffering such an illness has been warmly welcomed as an opportunity to reduce the stigma of mental illness within the community. Thanks to people like him and the work of organisations like Beyond Blue, people are much more open to discussing mental illness than ever before.
There is no question that the media reporting of Lance Franklin’s off-field issues has been respectful and responsible. No media outlet has disclosed the details Lance Franklin wishes to keep to himself.
From a legal perspective, the issue of where to draw the line is more vexed. Simply to illustrate how difficult it is to distinguish between what is in the public domain (not confidential) and what is private (confidential), consider this: Lance Franklin has partially consented to the release of private information about himself. If ever tested, a court might need to decide whether a partial consent to some information entering the public domain should be construed as a full waiver in relation to all information about the condition.
Courts tend not to permit people to pick and choose about what should be ‘in’ and what should be ‘out’, when the information which has been revealed, and that which has not been revealed, can be readily seen to form part of a continuum.
The above is not intended to suggest that Lance Franklin has, in fact, made such a waiver. Here, as in all cases concerning confidentiality, all the circumstances matter. Relevant considerations in any legal assessment would include, without limitation:
- the nature of the condition
- the fact that there does remain, in some quarters, a stigma towards mental health which justifies sensitive treatment
- efforts made to keep the nature of the condition quiet
- the number of people in ‘the circle of trust’
There are a range of other laws people can consider when trying to keep their off-field life private.
- Telecommunications laws deeming things like hacking unlawful
- Laws against hate speech and discriminatory speech
- the Australian Consumer Law (which offers protections against conduct likely to mislead or deceive and unconscionable conduct)
Legal protection does not offer full protection. How the public reacts to you can be the most important aspect of all.
Ryan Giggs, the former Premier League Player, would understand this point. In the United Kingdom he was one of many people who, for a time, successfully obtained Super Injunctions preventing even the existence of the lawsuit to be publicized. Relying on different laws from those in Australia, Giggs was able to suppress details of extra-marital affairs he had conducted by obtaining one of these injunctions.
However, Giggs did not count on Twitter. All it took was one Tweet leaking details of the injunction and the affair, and it was all over. For a time line of the Giggs injunction debate and how it played out, see the Telegraph report here.
Such was the opprobrium of the public towards the use of the legal system by such sports stars and celebrities to protect their private lives in this way, that Super Injunctions can be regarded as a fad that were ‘so 2011’. The Guardian reports that they are no longer a matter of controversy.
In the end, ensuring that your private life is consistent with the image you want to project, is often the best way to manage both your reputation and sense of self.