Peter A Clarke

In “Where the Bloody Hell Are You?”: Lara Bingle in Search of a Cause of Action the Fortnightly review has used the controversy involving a photograph of Lara Bingle in 2010 in the context of a cause of action in defamation, breach of privacy and misuse of her image.

It provides:

On March 1, 2010, Woman’s Day published a nude picture of Lara Bingle which was allegedly taken in 2006 while she had a “secret” affair with AFL star Brendon Fevola (who was and still is married to Alex Fevola).

The image shows Bingle in a shower trying to cover herself with her hands.  The expression on her face clearly depicts distress.  Apparently, the photo had been passed by Fevola to other people and had been “doing the rounds” for years.

The day after publication by Woman’s Day, Lara Bingle by way of her publicist Max Markson, announced she would take legal action against Fevola for 1) breach of privacy, 2) defamation and 3) misuse of her image.

Fiona Connolly said that Woman’s Day which has about 400,000 readers, published the photo because it was “going to come out anyway”.  She also said that Woman’s Day did not pay for the photo and would not disclose how they came to obtain the photo.

Lara Bingle’s publicist is reported to have said that Bingle had retained all her contracts and would move past the incident.

In an interesting turn of events, on March 8, Woman’s Day (the same magazine that printed the photo) published an exclusive interview with Bingle depicting “her side of the story”.  The fee for the interview was not disclosed but is rumoured to be around $200,000.  According to her publicist, Bingle has decided to give an “undisclosed amount” of money to the White Ribbon Foundation which is a charity that opposes domestic violence.

The controversy has sparked a myriad of comments.  The Fortnightly Review looks at the issue from a legal perspective.  We believe it is an important case given the rise of cyber-bullying and “sext-ing” in the community – something we will be commenting on in a future issue of the FR. We emphasise that Bingle’s statement of claim has not become available so we comment on the facts that are thus far publicly known.

Privacy and Misuse of Image

It is unclear just what causes of action is meant by the terms “breach of privacy” and “misuse of image”.  Is Bingle’s intention to argue that an Australian court should recognise a common law cause of action for breach of privacy (flagged as a possibility in ABC v Lenah Game Meats) – or will she be content to rely on the existing law of breach of confidence, as used for instance in the recent Victorian Court of Appeal decision in Giller v Procopets.  Unfortunately, she will have to traverse this tricky field of developing law very carefully. The picture is even more confused when it comes to the claim for misuse of image.  Is this again shorthand for privacy arguments considered above?  Or might she be considering actions for passing off and misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), as celebrities have often done in the past (including Bingle herself).  The difficulty with a passing off or TPA claim is that Bingle will have to show that Fevola made some kind of misrepresentation in the course of trade – and we find it hard to see either a misrepresentation or conduct in the course of trade on facts currently known to us.

The civil remedies we believe she may be seeking are uncertain here.  Perhaps the criminal law as suggested by other bloggers may give her some satisfaction.  Nevertheless, her arguments as to defamation do target a well developed area of law, however it is unclear as to whether she can satisfy the legal elements.

Defamation

From the facts known, it appears that Bingle is claiming that the distribution by Fevola of the photograph between various members of the AFL and the Australian Cricket Team amounts to defamation.

In order to make out the defamation cause of action, she is required to show that the publication of the photograph, assessed as a whole, conveyed one or more defamatory imputations about her.  There are three non-exhaustive ‘tests’ for determining whether an imputation carries a defamatory meaning.  At a very basic level, it must, in the eyes of the ordinary, reasonable reader or viewer:

1. lower the plaintiff in the estimation of others;
2. cause the plaintiff to be shunned or avoided; or
3. expose the plaintiff to hatred, contempt or ridicule.

And, herein lies the main obstacle for Bingle’s claim. It is difficult to see how the first two tests – the ‘lowering estimation’ and ‘shun and avoid’ tests – could be satisfied merely on the basis that Bingle was naked in the shower and had an unwanted photograph taken of her.  Indeed, we have all been naked in the shower, and it is unlikely that the ordinary, reasonable person would think less of Bingle or shun and avoid her simply on that basis.  Certainly, as required under the ‘lowering estimation’ test, it is hard to see how a reasonable, ordinary viewer of the photograph could ascribe any blame to Bingle for the taking of the photograph.

A conclusion about this, of course, depends on any additional material that may have accompanied the distribution of the photograph and which may modify the imputations carried by its publication – ie, it may, depending on the circumstances of the publication, carry an imputation of promiscuity or that she acquiesced in the taking and distribution of the photograph (see, in particular, Shepherd v Walsh & Ors ).  There is also the possibility, of course, that Bingle might plead defamatory meaning based on ‘true innuendo’ (ie by relying on extrinsic facts that were, in fact, known to its recipients).

Under the third test, however, there is authority to suggest that Bingle might have, at the very least, an arguable case on the basis of the publication of the photograph itself.  Thus, it was held in the well-known case of Ettinghausen v Australian Consolidated Press that the publication in a magazine (called ‘HQ’) of a photograph of the plaintiff, a famous Rugby League footballer, naked in the shower with his penis exposed, had the capacity to defame the plaintiff by exposing him to a more than trivial degree of ridicule.  The imputation pled by the plaintiff in that case was simply that ‘[t]he plaintiff is a person whose genitals have been exposed to the readers of the defendant’s magazine ‘HQ’, a publication with a wide readership.’  The ease with which the judge, Hunt J, arrived at his conclusion is astounding (although this can be, at least partly, explained on the basis that this imputation was pled in the alternative).  There was absolutely no analysis whatsoever as to how this imputation had the capacity to expose the plaintiff to ridicule, which has been held to mean ‘deserving to be laughed at’ or ‘absurd’ (see Boyd v Mirror Newspapers Ltd [1980] NSWLR 449 at 453). Significantly, there was no suggestion that there was anything unusual about the way the plaintiff was depicted. There was nothing ‘grotesque, monstrous or obscene’ about the photograph and it did not seem to make a ‘preposterously ridiculous spectacle’ of the plaintiff.  It was simply a photograph of a naked man in a communal shower, as is the usual practice following any football match.

In light of this yardstick, it is difficult to see how the photograph of Bingle – which also involves mere nudity – should be decided any differently, at least in relation to the judge’s question as to whether or not the photograph has the capacity to defame.  This leaves, of course, the further question of whether the photograph in fact bears the defamatory meaning – a question of fact not answered by the jury in Ettinghausen.

One potential problem for Bingle, however, is that even if defamatory meaning is established on the basis that a reasonable reader would view the plaintiff in a ridiculous light, it would be particularly easy for Fevola to rely on the defence of justification.  Thus, it is likely that Fevola could defend the publication on that basis that the imputation – the nudity – is, in fact, true.  In NSW, the scope of the truth defence in this context underwent particularly significant change following the introduction of the uniform defamation laws across Australia.  In particular, it removed the requirement under the justification defence (as it had previously operated in that state) that the publication must also serve the public interest. Indeed, one of the issues raised when the Defamation Act 2005 (NSW) was passed was that the removal of the public interest requirement under the justification defence would put a stop to defamation acting as de facto privacy protection. Defendants would escape liability for invasions of privacy by simply proving that the defamatory imputations concerning the plaintiff’s private life were true. This case brings such concerns to the fore, but also highlights the inherent problem of protecting what are essentially privacy interests under a cause of action for which it is not designed.