This article is Part 1 of a series entitled "Tortious Tales and other wrongful acts".
Over the last week much has been said in the media and online about the abhorrent nature of a photograph of Todd Carney, the 28 year old former Cronulla Sharks five-eighth, which was released into the public domain via social media, but there’s been little analysis of the impact the situation has had on Mr Carney’s career and reputation and, further, its legal implications.
On 1 July 2014, Channel Nine broadcast an interview with Mick Robinson, the man who admitted to taking the now infamous photograph. In that interview Mr Robinson admitted that the photograph was taken without Mr Carney’s knowledge or consent after Mr Robinson and a friend approached Mr Carney in a North Cronulla licensed venue toilet. The photograph was then, according to Mr Robinson, sent to his brother’s mobile phone. Mr Robinson’s brother claimed that he lost his mobile phone and somehow the photograph ended up being released through social media. It is unknown whether this version of events is accurate and this article is based upon information available to the wider public at this time.
While Mr Carney should never have put himself in the position where a photograph could have been taken by a “mate” or stranger (even unknowingly), the question from a legal perspective now becomes: what are the remedies available to Mr Carney for the damage one photograph has caused to his future playing career and general reputation? In other words, who can Mr Carney take action against to obtain compensation for losses he has suffered as a result of the dissemination of the photograph; and, as a matter of law, should any person or corporation be held to account to Mr Carney for the dissemination of the photograph or the words reported to describe the photograph? It has been well publicised that Mr Carney’s sacking by the Cronulla Sharks cost him his $3 million plus NRL playing contract and has likely effectively ended his NRL career.
Should Mr Robinson be held liable for the monetary and non-economic damage which Mr Carney has suffered as a result of his sacking by the Cronulla Sharks Rugby League Club? Does Mr Carney have a claim for damages against those television and print media groups who published and reported on the photograph, thereby bringing it to the attention of the general public and causing the Cronulla Sharks and the NRL to take disciplinary action against him?
We will now turn our analysis to whether Mr Carney can make a claim in tort against Mr Robinson for taking the photograph. Mr Robinson’s act of taking the photograph has clearly interfered with Mr Carney’s interests and damaged his reputation, but is it the direct cause of the loss which Mr Carney has suffered? The law of torts has often been utilised by plaintiffs to protect their right to be free from interference by third parties and to remedy money lost as a result of acts of third parties.
The exact location of where this offensive photograph was taken may be an integral fact to the success of any court action brought by Mr Carney against Mr Robinson. The court may be inclined to find that while using the toilet facilities, Mr Carney was entitled to a reasonable expectation of privacy and, in taking the photograph in that location, Mr Robinson has invaded Mr Carney’s privacy. While there is no current right to privacy in Australia to protect a public figure from the unauthorised use of their image, the circumstances of this case may convince an Australian court that a tort of invasion of privacy has occurred and an Australian court may provide a remedy to Mr Carney for any damage caused to him as a result of the dissemination of this unauthorised image.
Mr Carney may also wish to consider whether he has any claim for defamation against television and print media, given the media reports surrounding the content of the photograph and the representations made by the media in relation to the photograph after it went viral over the weekend of 28-29 June 2014. These reports may have lowered the public’s estimation of Mr Carney by giving the impression that he had authorised the taking and publication of the photograph. In 1991, another former Cronulla Sharks player, Andrew Ettingshausen, was successful in bringing a defamation case against a magazine that had published a photograph of him revealing his genitals without his permission (see Australian Consolidated Press Ltd v Ettingshausen (unreported CA40079/93, CA (NSW) Gleeson CJ, Kirby P and Clarke JA, 13 October 1993)).
Hopefully Mr Carney can resolve this matter without needing to seek legal relief. However, given the extent of the damage he has suffered to his career and reputation, this may be his only option to defend his public image.