Lara Bingle's decision to start legal proceedings against
Brendan Fevola after he allegedly made a nude photo of her public
once again raises the question of Australia's privacy laws and
what, if anything, a person can do to prevent photos of themselves
Under Australian privacy law, it is quite possible (depending on
the circumstances) that ordinary people would have little or no
legal right to prevent the unauthorised use of their image.
Although this issue has received a lot of attention in the media,
the circumstances in which the law can intervene to prevent an
individual's photo being distributed without permission are
very limited. Australian law relies on a patchwork of five legal
causes of action to protect individual privacy, rather than a
single right to individual privacy:
A limited body of privacy law
Breach of confidence law
Passing off and/or misleading and deceptive conduct law
So far, the only Australian case law to formally recognise a
right to personal privacy is a single decision of the Queensland
District Court. However, the facts of that decision were aimed at
preventing a continuous "stalking-like" situation, rather
than the publication of a one-off photo. There is State and Federal
legislation in place that deals with privacy, but that legislation
deals with "informational privacy" for personal
information collected by organisations, rather than "personal
Copyright law will only step in to prevent the publication of a
photo where a person owns the copyright to that photo. Typically,
the person who takes the photograph will own the copyright in it,
unless it is a commissioned photograph (such as someone
commissioning a portrait for a wedding). Obviously, Lara Bingle
could not argue that she commissioned Brendan Fevola to photograph
her on his mobile phone, as he was not requested and/or paid to do
The law of defamation is also unlikely to prevent a photo being
published unless the photo taken would bring the person into
hatred, contempt or ridicule; cause people to shun or avoid that
person; or lower the person in the estimation of others. Bingle may
be able to argue that the publication of the naked photo has
defamed her because it implies that she is the kind of person who
would willingly allow others to take non-professional or
non-artistic nude photos of her, which may lower others'
estimation of her.
The law relating to confidentiality may impose some restrictions
on taking unauthorised photos, but only where these relate to
highly personal matters, such as sexual relations between people.
It can not prevent someone, for example, taking a photo of you in a
shopping centre or taking a photo of your house.
Finally, if a person uses a photograph of another person with a
commercially saleable reputation, such as a celebrity, without
their permission, then that person may be liable for passing off or
may be held to have breached the Trade Practices Act. The
circumstances in which these causes of action apply are also fairly
limited, especially for photographs of a sexual nature, such as
Bingle's photo. It would need to be shown that the public would
conclude that Bingle had somehow given her endorsement to having
the photo published, which is unlikely given that her expression in
the photo is one of anger.
Despite these legal protections, it is arguable that Australian
law still does not adequately protect an individual's privacy,
or prevent photographs of them being published without their
consent. If Lara Bingle chooses to begin the legal action she has
threatened against Brendan Fevola, it may once again provide the
Courts with the opportunity to determine whether an
individual's right to privacy should exist and, if so, what the
scope of that right should be.
For more information on Australia's privacy laws, please
contact HopgoodGanim's Intellectual Property and Technology
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