Two recent media stories have highlighted privacy issues in the age of smartphones and social media.  The facts of these two cases are well known, at least in New South Wales. Partner, Tom Griffith, takes a look at the stories and their implications for privacy in this digital age.

Todd Carney

As has been widely reported, rugby league player Todd Carney was photographed in a public toilet performing what has been described as a “lewd act” in front of a urinal. No one apart from Carney was involved. The photograph was posted on twitter, and was disseminated widely. Within 24 hours of the photo being posted, Carney, who has had a troubled record for disciplinary issues, was sacked by his employer the Cronulla Sharks Rugby League Club.

The photograph has variously been described as vulgar, distasteful and juvenile. But some cooler heads have queried whether, leaving those matters to one side, Carney’s privacy has been infringed upon.

The basis of such concerns is that the photograph was taken in a “private” public space – that is, a public toilet. There was no victim apart from standards of taste and public decency. However, the nature of the photo suggests that it was posed. That is, it seems that Carney at least expected that his act would be photographed. However, it is quite another matter to say that Carney expected the photograph to be posted on social media.

Given the ease with which digital photos can be uploaded onto social media, could such an expectation be implied?

There is no common law right to privacy in Australia. Withholding consent to being photographed is difficult, and may only be effectively enforced if both the photographer and the subject are on private property, and the photography is not consensual. Alternatively in NSW it is also illegal to film a person engaged in a private act (which includes someone going to the toilet) without their consent.

A public toilet is not private property. However, many would assume that there is a legitimate expectation of privacy, as this is recognised in other parallel legislation, such as the Workplace Surveillance Act 2005 (NSW) which prohibits employer surveillance of employee toilets or change rooms. Carney’s incident did not occur in the workplace, and the “surveillance” was not conducted by his employer, so he could not avail himself of this protection.

Other legislation exists in different forms in different states of Australia to prevent the offence of “upskirting” (unauthorised photography of someone’s genital area). The Carney photograph does not fit the category of an upskirting offence for various reasons.

Politicians are often haunted by photographs they later regret. Former premier Barry O’Farrell was famously photographed in a jovial pose with Head of Australian Water Holdings Nick Di Girolamo at a dinner, but later denied being close to Mr Di Girolamo. There was no suggestion that the photo was taken in a private place, or that Mr O’Farrell’s privacy was infringed. It was simply an unfortunate photo.

For Carney, these legal and technological debates are too late. He has been sacked, and his future career prospects in Australia are dim, given the notoriety of the incident.

For those seeking to uphold their reputation, the safest course is to assume that any photograph taken in a public place may ultimately be posted on social media.

‘Racist Train Lady’

The second incident concerns YouTube footage of a woman’s racist rant on Sydney public transport.

The conduct in question was disgraceful - the woman mocked a fellow passenger for having an Asian girlfriend and made several racist remarks about the woman’s accent and asked why she didn’t go back to China or Hong Kong.

In the aftermath of the footage being posted on YouTube, media reports identified that the woman used a false name to identify herself and then proceeded to reveal her correct name, as well as her age, occupation and previous places of employment.

For many observers she became known simply as “racist train lady”.

The woman was later charged by police for her conduct and has since apologised. She blamed her behaviour on having a bad day, her difficulty securing work as a temp legal secretary and being the victim of an online dating scam.

The woman’s rant will, however, remain on YouTube and on media websites for perpetuity. Any future employer performing background checks on the woman will be made aware of it. It could be expected to have a significant adverse effect on the woman’s employability.

Both of these recent examples are illustrations of the power of social media and its potential to significantly infringe upon privacy. Some may say “do something stupid in public and you have to live with the consequences” however the consequences are far more pronounced in the age of social media, and can be disproportionate.