Another revenge porn story, this time involving an ex AFL footballer highlights the poor privacy law protections
May 4, 2018 |
Today’s story in the Age of a video footage of Dane Swan, former AFL player, being circulated on line highlights the total inadequacy of Australia’s privacy protections. Governments have been keen to criminalise the acts of distributing intimate videos and pictures on line without the consent of the subject of those images but have been totally unwilling to give individuals a civil right to take action of their own volition for such breaches. In short, it comes down to the police having to carry the load totally when an individual may wish to also exercise their right. Governments have been virtue signallers at best. Yes criminalise the conduct but provide proper privacy protection through a statutory tort of invasion of privacy.
The problem with the half measure that exists is that the victim is in the hands of the police in protecting his or her rights. With the burden higher and the resources of the police always been put under pressure of workload that is far from satisfactory. It is also an unfortunate reality that not all complaints result in charges being laid. In a very interesting Guardian article involving Chrissy Chambers only 40% of revenge porn complaints result in action. Chrissy Chambers took civil action and became the first person in the United Kingdom to win civil damages. With criminal proceedings the prosecution is conducted by an informant, a police officer, with summary offences and by the Crown with indictable charges. It is common that charges are dropped when a plea deal is reached. That is not the victim’s call. It is the prosecutors. Negotiating a settlement is common and there is nothing untoward about it.
The other limitation of keeping revenge porn as a solely criminal action is that it fails to quantify the humiliation and embarrassment and sometimes loss of income associated with the damage caused by revenge porn. In Australia bringing a civil action to address that is currently fraught, relying on causes of action not designed to deal with these specific issues. In the US
There is a role for civil action to deal with this eggregious behaviour. State and Federal Governments of both hues have ignored it for the last 30 years. This has been a failure of public policy. With the internet and the ability to infringe on individual’s privacy in much more damaging ways, this continuing failure is becoming something of a scandal.
The Age article provides:
Dane Swan says he has been the victim of a “gross breach of my privacy” after a tape showing the former AFL star and Brownlow medallist in a compromising position with a woman was circulated online, prompting a police investigation.
His manager has meanwhile accused the media of a “double standard” when it comes to the naming of men and women who become the subjects of videos distributed without their consent.
The video, which has been seen by The Age, features the former Collingwood star midfielder naked in bed with the woman.
While the kissing is clearly consensual and both parties seem aware that they are being filmed, a Victoria Police spokeswoman said the video was “posted without consent”.
“Prahran police are investigating after a video was distributed electronically and online,” spokeswoman Alex Day said.”As the investigation is ongoing it would be inappropriate to comment further.”
Police declined to comment on who made the report to the authorities or whether both parties behind the camera had been formally interviewed.
Swan did not appear in his regular spot on The Footy Show on Thursday night, however host Eddie McGuire read a statement on Swan’s behalf.
“I have recently become aware of a video of me being published and circulated on the internet,” Swan said.”Contrary to some media reports, the video is not a ‘sex tape’.
Although the video was taken a long time ago, it has been posted and distributed only recently. It was taken and distributed without my consent. The distribution is a gross breach of my privacy.
“As it is illegal to distribute such material online without consent I have reported the matter to the police who are investigating the distribution.
“As the matter is under investigation I have no further comment at this time and I ask that my privacy be respected.”
Swan’s manager Liam Pickering said in a statement issued to The Footy Show that: “In other similar incidents often with a female victim the media has been keen to protect the victim’s identity.”
“Although Dane understands he is a public figure, he is the victim in this case and is no less deserving of that protection.
“There is a double standard where the media feels free to name him and engage in a feeding frenzy of commentary and speculation about the circumstances, rather than allow him the privacy that any victim in such circumstances is entitled to have.
“The media do not know the circumstances and we will take action against anyone who speculates unfairly about them.”
A tape showing the AFL star in a naked romp with a woman has been circulated online “without consent”. Vision: Seven News.
It’s not the first time Swan has found himself at the centre of controversy over explicit images.
In January 2016, Collingwood was forced to address the distribution of nude ‘selfies’ of Swan and teammate Travis Cloke.
And in October, Richmond footballer Nathan Broad made a public apology after being outed as the player behind circulated images of a topless woman wearing a premiership medal.
The 24-year-old shared the image without the women’s permission and was subsequently suspended for three games.
At the time Broad urged anyone considering doing the same thing to remember that it was “never acceptable to send these sorts of private images without permission”.
In 2010, St Kilda was embroiled in a naked photo scandal after images of Nick Riewoldt, Zac Dawson and Nick Dal Santo were taken from a laptop and posted online.