Peter A Clarke

The extent to which the unauthorised photographs of Dean Laidley have spread through texts and via social media is not publicly known but the reporting suggests it has been, and probably continues to be widespread.  The immediate impact has been on the Victoria Police with a second policeman, a senior constable, stood down and under investigation and likely to be charged.  The story is reported by the Age in Second police officer suspended over leaked images of Dean Laidley and by the ABC with Victoria Police suspends second police officer over unauthorised sharing of Dean Laidley photo.  Both Senior Constables will be fortunate if the extent of their troubles is limited to damaging their careers within Victoria Police.  If convicted of a criminal offence they face the real prospect of losing that career.  In those circumstances officers more often than not resign before being removed from the Force. 

To the extent that action has been taken is laudable, but the episode also highlights that in Australia it is for the authorities to take action.  The law in this area is lamentably paternalistic.  The ability of Australians to take action, or at least consider it, for breaches of their privacy is so circumscribed as to be near worthless.  There is no statutory right for interference with privacy what action is available in Victoria under the Privacy and Data Protection Act is limited to Victorian agencies and the Victorian Civil and Administrative Tribunal has through its decisions proven itself incapable of understanding basic principles of privacy law when hearing cases.  The jurisprudence stands in stark contrast to jurisprudence in other common law jurisdictions. Instead of looking at the interferences with privacy the law has developed into a tedious, arcane if not byzantine application of administrative law principles of dubious relevance to complaints.  The outcome is almost invariably favourable to the government agencies.  Even where an applicant is successful the awards are risible.  The net result is that for an applicant there is little point prosecuting a claim in that jurisdiction against agencies. If they wish to bring an action it must be done in the court system.  And that is being done using equity in the main. But a statutory tort of interference with privacy would fill a major hole in the law. 

The mainstream media should also be the focus of legal proceedings, primarily the tabloid Herald Sun.  It was incredibly cynical in publishing and republishing the images.  While action could be taken for misuse of private information such a claim would be complicated and far more difficult than claiming a breach of the statutory tort of inference with privacy, which is a part of (in statutory or common law form) in all other common law countries.