This article is Part 1 of a series entitled
"Tortious Tales and other wrongful acts".
Over the last week much has been said in the media and online
about the abhorrent nature of a photograph of Todd Carney, the 28
year old former Cronulla Sharks five-eighth, which was released
into the public domain via social media, but there's been
little analysis of the impact the situation has had on Mr
Carney's career and reputation and, further, its legal
On 1 July 2014, Channel Nine broadcast an interview with Mick
Robinson, the man who admitted to taking the now infamous
photograph. In that interview Mr Robinson admitted that the
photograph was taken without Mr Carney's knowledge or consent
after Mr Robinson and a friend approached Mr Carney in a North
Cronulla licensed venue toilet. The photograph was then, according
to Mr Robinson, sent to his brother's mobile phone. Mr
Robinson's brother claimed that he lost his mobile phone and
somehow the photograph ended up being released through social
media. It is unknown whether this version of events is accurate and
this article is based upon information available to the wider
public at this time.
While Mr Carney should never have put himself in the position
where a photograph could have been taken by a "mate" or
stranger (even unknowingly), the question from a legal perspective
now becomes: what are the remedies available to Mr Carney for the
damage one photograph has caused to his future playing career and
general reputation? In other words, who can Mr Carney take action
against to obtain compensation for losses he has suffered as a
result of the dissemination of the photograph; and, as a matter of
law, should any person or corporation be held to account to Mr
Carney for the dissemination of the photograph or the words
reported to describe the photograph? It has been well publicised
that Mr Carney's sacking by the Cronulla Sharks cost him his $3
million plus NRL playing contract and has likely effectively ended
his NRL career.
Should Mr Robinson be held liable for the monetary and
non-economic damage which Mr Carney has suffered as a result of his
sacking by the Cronulla Sharks Rugby League Club? Does Mr Carney
have a claim for damages against those television and print media
groups who published and reported on the photograph, thereby
bringing it to the attention of the general public and causing the
Cronulla Sharks and the NRL to take disciplinary action against
We will now turn our analysis to whether Mr Carney can make a
claim in tort against Mr Robinson for taking the photograph. Mr
Robinson's act of taking the photograph has clearly interfered
with Mr Carney's interests and damaged his reputation, but is
it the direct cause of the loss which Mr Carney has suffered? The
law of torts has often been utilised by plaintiffs to protect their
right to be free from interference by third parties and to remedy
money lost as a result of acts of third parties.
The exact location of where this offensive photograph was taken
may be an integral fact to the success of any court action brought
by Mr Carney against Mr Robinson. The court may be inclined to find
that while using the toilet facilities, Mr Carney was entitled to a
reasonable expectation of privacy and, in taking the photograph in
that location, Mr Robinson has invaded Mr Carney's privacy.
While there is no current right to privacy in Australia to protect
a public figure from the unauthorised use of their image, the
circumstances of this case may convince an Australian court that a
tort of invasion of privacy has occurred and an Australian court
may provide a remedy to Mr Carney for any damage caused to him as a
result of the dissemination of this unauthorised image.
Mr Carney may also wish to consider whether he has any claim for
defamation against television and print media, given the media
reports surrounding the content of the photograph and the
representations made by the media in relation to the photograph
after it went viral over the weekend of 28-29 June 2014. These
reports may have lowered the public's estimation of Mr Carney
by giving the impression that he had authorised the taking and
publication of the photograph. In 1991, another former Cronulla
Sharks player, Andrew Ettingshausen, was successful in bringing a
defamation case against a magazine that had published a photograph
of him revealing his genitals without his permission (see
Australian Consolidated Press Ltd v Ettingshausen (unreported
CA40079/93, CA (NSW) Gleeson CJ, Kirby P and Clarke JA, 13 October
Hopefully Mr Carney can resolve this matter without needing to
seek legal relief. However, given the extent of the damage he has
suffered to his career and reputation, this may be his only option
to defend his public image.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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