Privacy please? Balancing players’ right to privacy with society’s desire to know

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It is unfortunate that this year’s pre-season was overshadowed by media reports of poor off-field behaviour by a number of young players, most notably a handful of Queensland’s Emerging Origin squad and of course, Mitchell Pearce.  The Pearce saga was particularly newsworthy, and while it raised a number of important societal issues it also raised an important legal issue that players, the public, media, Courts, Government and law reformers have been grappling with for over 40 years – the right to privacy.

Rugby league is a significant part of Australian culture – it is inherently interesting to the public and to the media.  It is unsurprising, therefore, that the private lives of players are also interesting. Earlier this year, Mitchell Pearce was suspended for 8 weeks and fined $125,000 for his poor Australia Day behaviour, which was captured in what has been described as a private setting, by a smartphone.  The incident gave rise to a discussion in rugby league around the right to privacy – newspaper reports indicated that Pearce was seeking legal advice in relation to a claim for invasion of privacy.

We are now approaching round 8 and the imminent return of Pearce to the competition in round 9.  This timing intersects with the recommendation last month of the Law and Justice Committee, convened to undertake an inquiry into the law around serious invasions of privacy, that the NSW Government introduce a statutory cause of action for serious invasions of privacy.

Clubs rely on their players not only to perform on the field but to behave appropriately off the field.  Players are required to maintain appropriate off-field behaviour because of the serious consequences adverse media attention can have on the involvement and engagement with the game by key stakeholders, such as us, the fans. There are expectations of “model” behaviour from our players.  A role model is said to be “an individual perceived as exemplary, or worthy of imitation”. It is an expectation of entering the field of professional sport (and executing the player contract) that players adhere to the standards expected of them from their fans, their club, the media, sponsors and the general public.

As a result, the boundaries between a player’s professional and private life have become blurred.  Hence, the airing of a private matter can have significant consequences not only on the private life of a player, but also on their professional career. This is why some argue it is important for there to be a statutory protection against serious invasions of privacy.

Put simply, there is no legal cause of action to remedy an invasion of one’s privacy in either statute or common law.  In the past, players have had to rely on causes of action which may or may not address the harm for which they seek redress, such as defamation or breach of confidence. Most will remember the Ettingshausen case of the mid-1990s. In that case, ET was fairly plain that his primary concern was that his privacy had been invaded by virtue of the publication of photographs of his private parts in a widely-distributed magazine.  But the case he brought was framed as a defamation action, in which he was successful in alleging that his reputation had been damaged by the publication of the photos. What ET truly wanted was redress for what he considered to be a serious invasion of his personal privacy.

There have been a number of law reform commission reports over the past 40 years which have considered the position of Australian privacy law.  At the heart of the issue in this context is striking the appropriate balance between protecting a player’s privacy, and another, equally important right – the right to freedom of speech – as privacy laws are seen as a limitation on the public’s (and the media’s) right to freedom of speech.  Relevantly, we also do not have an enshrined right to freedom of speech in Australia as they do in other jurisdictions (such as the US First Amendment).

The Law and Justice Committee in the New South Wales Legislative Council recently conducted an inquiry into the adequacy of existing remedies for serious invasions of privacy and whether a statutory cause of action for serious invasions of privacy should be introduced.  On 3 March 2016, the Committee recommended that the NSW Government introduce a statutory cause of action for serious invasions of privacy. This is a fairly significant turning point in the history of Australian privacy law and it remains to be seen whether the Government will take on this recommendation and provide a statutory cause of action.  The Federal Government opposes such legislation.

There is no doubt that a player’s personal and professional life are entangled – it is difficult to see where one ends and the other begins.  Most will accept, however, that players should be able to seek redress where there has been a serious invasion of privacy. The Committee’s recommendation is therefore likely to be welcomed by players (and other celebrities).  The difficulty will be ensuring appropriate decisions are made as to what is considered “private”, what is considered “serious” and ensuring that the balance between a player’s right to a remedy for a serious invasion of privacy is adequately balanced against the public’s right to know and right to freedom of speech.

Love,

Ladies who League xxx