Age breathlessly reports that Victoria Police could be sued over leak of Laidley photo. Duh! The real story is that when it comes to protecting privacy and getting redress the law is woefully inadequate.

May 6, 2020 |

The angles newspapers take to kick a story along can be astonishing.  In today’s Age the story Police could be sued over Laidley photo leak, lawyer warns reports that Victoria Police could be sued in relation to the leak of photographs of Dean Laidley.  Really! That is the story? The “talking head” that is the hook for the story, is Jeremy King providing ex tempore observations, that there was a breach of confidential information and  misfeasance in public office.  They were reasonable general comments overall. But hardly extraordinary and definitely not in the “breaking news” category.

All in all it is pretty thin gruel for a story in a large newspaper.  It does however provide an opportunity to have a (very) brief look at how inadequate the law is in this area.

Until all the facts are known it is impossible to properly assess and determine what causes of action are available.  But even at this preliminary stage there appear to be some available.  Unfortunately with no statutory tort of interference with privacy (recommended by the Australian Law Reform Commission twice, the Victorian and New South Wales Law Reform Commissions, the ACCC in its recent Digital Platforms Report, multiple Federal and State Parliamentary Committees and recommendations by learned academics over the last 40 years) when dealing with privacy breaches it is necessary to rely on a range of torts, claims in equity and, on occasion, common law to bring a case.

There are two distinct issues in a case of this nature, the liability of those who took the photograph and disseminated it and that of the Victoria Police.  Regarding the former a misuse of private information claim would be in the offing.

King referred to a claim of misfeasance in public office in a claim against the Victoria Police.  It is a long established tort but one that is notoriously complicated and quite ill defined.  In broad terms it can be described as a deliberate tort where there is an unlawful, invalid or unauthorised act, sometimes omission, undertaken knowingly or maliciously  by a person performing a public service or a public officer in the discharge of his or her public duties.  There needs to be loss or some form of harm alleged and proved.  If a person acts outside the scope of his or her office there is a live question of whether there is only personal liability rather than vicarious liability.  Difficult questions need to worked out. It is not as easy a case as it looks at first blush.

But there are other claims that could be brought against the Victoria Police including other claims in tort and in equity.  What I have found is that the government agencies and the police are good at preparing manuals and protocols on all manner of activities, prescribing all sorts of activities and terrible at ensuring those protocols and rules are followed.  Practice takes a different route to the rules.  And when it comes to privacy practices the Victoria Police is a frequent flier in breaching its own rules and the spirit and letter of legislation.  That doesn’t stop it vigorously fighting complaints and proceedings.

And of course there should be consideration given to taking action against newspapers and social media sites which published these photographs.  Again there is scope to bring action but the state of the law at the moment makes it a more complicated exercise than it should be.

A complaint could be made to the Victorian Information Commissioner under the Privacy and Data Protection Act 2014 and, if not resolved, an action in the Victorian Civil and Administrative Tribunal.  That is a course of action I would never recommend.  The outcomes have been so disappointing, and sometimes dire, by applicants before the Tribunal that it is not worth the risk.

It is beyond question that what happened to Laidley was an egregious breach of a person’s privacy.  Even the Victoria Police agree with that and that is an organisation that is famous for circling the wagons on just about any complaint made against it.  And while action will most likely be taken by the Victoria Police against those who took and disseminated the photographs if the person affected wanted to take redress the legal options are there but they are cumbersome and complicated. A statutory tort for interference with privacy would simplify and provide justice for those whose privacy have been breached in such an egregious manner.  It wouldn’t open floodgates, ruin the practice of journalism or result in trivial claims. Those issues don’t arise in other common law jurisdictions and protections to protect freedom of speech and the practice of journalism can, and should, be incorporated into the law. Unfortunately it is matter of a lack of will by legislatures, Federal and State, of all political hues.  It has been, and remains, a huge failure of public policy at the Federal and State level.

The Age article provides:

Victoria Police could face a civil lawsuit over widespread sharing of photographs of former AFL coach Dean Laidley taken while he was in police custody last weekend.

The warning comes as police on Tuesday suspended a second policeman over sharing photographs of Mr Laidley wearing a wig and make-up.

Police confirmed Professional Standards Command had suspended a senior constable from the southern-metropolitan region. The officer is expected to be charged with unauthorised disclosure of information.

Senior Constable Shane Reid on Monday was the first officer suspended for sharing the photographs via WhatsApp.

On Tuesday, Robinson Gill lawyer Jeremy King said Victoria Police was at risk of being sued over the incident.

“There’s certainly an argument for civil litigation against Victoria Police,” Mr King said.

“It’s clearly a breach of confidential information and it’s done with reckless indifference and it’s clearly going to cause harm and damage.”

It is illegal for police to use or disclose police information without reasonable excuse and the Laidley case was “right up there” among the worst examples, Mr King said.

“It’s got to be one of the most shocking breaches of privacy I’ve seen in recent memory,” he said.

Mr King said a civil lawsuit could be run on the grounds of misfeasance in public office in which an official commits an unauthorised or unlawful act recklessly with the intention or reckless indifference to the harm caused.

“This case is pretty simple – it’s clearly unlawful,” Mr King said.

A key aggravating factor in a civil case would be proving the psychological harm to Mr Laidley, whose lawyer told the court on Sunday he was suffering from a psychiatric illness.

Mr Laidley, a former North Melbourne coach and premiership player, was arrested in St Kilda on Saturday night and charged with stalking and other offences. He was taken into custody and faced court on Sunday.

Mr Laidley’s mugshot was shared broadly on social media late on Sunday, along with a photograph taken inside the police station – shot through the glass wall of an interview room – which showed the former Kangaroos coach being questioned by two uniformed officers.

Deputy Commissioner Shane Patton said the photos were shared with six other people, including civilians.

“I am appalled that an employee of Victoria Police has taken these photographs,” Mr Patton said on Monday.

“It’s unacceptable conduct, it’s appalling conduct and that type of conduct has no place in our organisation.”

Professional Standards Command detectives interviewed Senior Constable Reid on Monday.

The South Melbourne-based officer faces being charged on summons with unauthorised disclosure of information, an offence that carries a maximum of two years’ prison.

It’s got to be one of the most shocking breaches of privacy I’ve seen in recent memory.

Jeremy King, lawyer

Chair of the Criminal Bar Association of Victoria Daniel Gurvich, QC, who would not comment on Mr Laidley’s case specifically, said that when police misused information it risked the administration of justice.

“It places at risk the right to a fair hearing and it risks the due consideration of evidence, which ought to be properly put before the court,” Mr Gurvich said.

“That is especially so at an early stage where investigations may be ongoing and, of course, the presumption of innocence applies and continues to apply until it is displaced by a properly constituted court or tribunal.”

The Age has viewed the photographs of Mr Laidley and decided not to publish them.

A number of lawsuits have been filed against Victoria Police in recent years, and some large settlements paid out, including millions in compensation to a couple shot by police during a bungled raid on a nightclub swingers’ party.

The force is also facing a lawsuit by a Melbourne man whose murder conviction was overturned.

Faruk Orman’s conviction for the murder of Victor Peirce was quashed last year over revelations police informer and gangland lawyer Nicola Gobbo had tainted his case.

Mr Orman, who spent 12 years behind bars, has now filed documents in the Supreme Court seeking damages from the state.

Mr Orman was accused of being the getaway driver for hitman Andrew “Benji” Veniamin. The lawsuit claims Mr Orman was the victim of false imprisonment and malicious prosecution and that police breached a duty of care.

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