It’s been in the headlines for weeks: Lara Bingle, Brendan Fevola and that nude photograph. Taken during their brief affair several years ago, the photo of a nude Bingle in the shower has been distributed, printed and re-printed. But Bingle’s chances of successfully suing Fevola are actually limited by Australia’s privacy laws, says Michael Morris, head of HopgoodGanim’s IP and technology practice.
“Australia’s privacy law offers very little protection for individuals. Under our privacy laws, it is quite possible that ordinary people would have little or no legal right to prevent the unauthorised use of their image,” said Morris.
In fact, Bingle would need to prove that the publication of the nude photo is defamatory or a breach of confidence. This event brings back memories of another high-profile Australian defamation case involving well-known rugby player Andrew Ettinghausen, who successfully sued HQ Magazine when it published a nude photograph of him.
“Bingle may be able to argue that the publication of the naked photo has defamed her because it implies that she is the kind of person who would willingly allow others to take non-professional or non-artistic nude photos of her, which in turn may lower others’ estimation of her,” explained Morris.
Although the media frenzy over another nude celebrity can be trivialised, this is a reminder that Australian law does not protect an individual’s privacy or prevent photographs being published without consent. “If Lara Bingle chooses to begin the legal action she has threatened, it may give the Australian Courts the chance to consider whether an individual’s right to privacy should exist and, if so, what the scope of that right should be,” said Morris.
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