'Playing Away from Home: Sportspeople, Privacy and the Law' by David Rolph in 6
Australian and New Zealand Sports Law Journal (2011) 35-62
notes that
The private lives of sportspeople are of considerable interest to many media outlets and their audiences, yet sportspeople may not always be able to protect their privacy adequately by legal means. Focusing on Australian and United Kingdom law, this article examines how sportspeople can indirectly protect their privacy through defamation law. It also examines how breach of confidence and the proposed introduction of a statutory cause of action for invasion of privacy in Australia. Finally, it analyses the recent cases of Terry v Persons Unknown [2010] EWHC 119 (QB) and ‘the St Kilda schoolgirl scandal’ to explore the legal and practical difficulties sportspeople confront in protecting their privacy and managing their image.
In discussing recent developments Rolph notes that
As privacy law in Australia develops in whatever form it takes, sportspeople will confront ongoing difficulties protecting their privacy against media intrusion. For sportspeople who have long been prominent in their sporting careers and therefore of interest to the media, often in relation to non-sporting aspects of their lives, the prolonged media exposure may act to deprive them of expectations of privacy they might otherwise have enjoyed. For instance, in 2010, an escort, Jenny Thompson, gave an interview to the tabloid newspaper, The News of the World, about having sex with Premier League footballer, Wayne Rooney, while Rooney's wife, Coleen, was pregnant. Rooney reportedly considered seeking an injunction to restrain the interview being published but decided against it. The fact that, in 2004, Rooney had voluntarily discussed his use of prostitutes when he was "very young and immature", and, to a lesser extent, the fact that he and his wife sold the rights to their wedding photographs to a women's magazine for an estimated £2.5 million, would have weighed against the success of any application, as this prior media coverage, particularly the former, could be used as the basis of a defence of public interest by a media outlet. In order for sportspeople to maximise the possibility of protecting their privacy against media intrusion, they need not only to be vigilant but also consistent in their dealings with the media.
Interaction with the media can also present another difficulty. In Terry v Persons Unknown, the active "reputation management‟ engaged in on behalf of John Terry, the captain of the Chelsea and the English national soccer teams and 2009 Father of the Year, deprived him of his ability to protect his privacy. In late January 2010, Terry sought an injunction to restrain the publication of the fact of his extra-marital relationship with French model, Vanessa Perroncel; details of their relationship, including its consequences; material leading to the identification of Terry and Perroncel; and photographs evidencing or detailing these matters. Tugendhat J accepted that the information, if published and found to be false, was arguably defamatory. The evidence before the court indicated that Terry‟s solicitors and business partners met to discuss media interest in Terry‟s private life. The business partners arranged for Perroncel to sign a confidentiality agreement. Tugendhat J was concerned about this, as, unlike the solicitors, the business partners owed no duties to the court. His Lordship inferred that the business partners had a clear, commercial interest in protecting and enhancing Terry's reputation, particularly for the purposes of sponsorship. He also had reservations about whether the confidentiality agreement accurately reflected Perroncel's wishes, suggesting a power imbalance between Terry and Perroncel based on their relative public profiles, questioning whether the stated consideration of £1 was the only consideration provided and querying how Terry's business partners came to be talking to Perroncel in the first place. Tugendhat J was also concerned that Terry did not put on any evidence himself. This lack of evidence was apparently because Terry was busy. In his Lordship's words, "[r]espect for the dignity and autonomy of the individuals concerned requires that, if practicable they should speak for themselves". Given that the interest sought to be protected in the proceedings was Terry's personal privacy, this gap in the evidence was telling. It fortified Tugendhat J in his ultimate conclusion that Terry was principally concerned with his reputation, not his privacy. In his Lordship's view, Terry treated the legal proceedings in response to the allegations as "a business matter". Consequently, the restrictive approach to the grant of injunctions to restrain the publication of defamatory matter applied. The newspapers were at liberty to publish the allegations. Terry v Persons Unknown indicates that successful sportspeople, who rely upon professional services to create, maintain and protect their public profiles, need to take a different approach when engaging in litigation to protect their privacy. Given the highly personal nature of the interest involved, courts require sportspeople to demonstrate an active concern for their privacy, rather than devolving that responsibility to others.
When seeking to protect their personal privacy, sportspeople also confront real challenges from technology. This capacity and the inadequacy of current Australian laws to protect personal privacy were amply demonstrated by the experience of several prominent St Kilda footballers in late 2010. A seventeen year old girl uploaded naked photographs of Nick Riewoldt and Nick dal Santo to her Facebook page. She claimed that she had come to know the footballers when they visited her school, that a sexual relationship developed with one player, Sam Gilbert, and that she fell pregnant with his child, although the baby was stillborn. She claimed that she took the photographs herself in Melbourne but it was later revealed that they were taken by Gilbert on a team trip to Miami and that she had copied them from his laptop computer. Riewoldt had asked Gilbert to delete them immediately but Gilbert had not done so. The girl threatened to release further compromising photographs of other players from the Carlton and Sydney AFL clubs but this never transpired. The St Kilda Football Club and Gilbert commenced proceedings in the Federal Court of Australia against the girl. Marshall J ordered the girl to take down the photographs and not to post any further ones. However, by then, the photographs were widely circulating on the internet. The girl continued to make allegations via Twitter and Youtube. As a result of the publication of the photographs, Riewoldt was harassed when he went out in public. In January 2011, a settlement was reached whereby the girl agreed to comply with a court order that she delete the photographs and not repost them again in return for accommodation being provided for her for several months. The resolution of the Federal Court proceedings was not the end of the matter. The girl in question attended the St Kilda AFL team's training session, distributing leaflets and heckling players. In February 2011, she also claimed that a sexual relationship developed between her and player agent, Ricky Nixon, during which he supplied her with cocaine. Following an investigation, Nixon was banned by the AFL Players' Association's Agents Accreditation Board from acting as a player agent for two years. In March 2011, the girl gave an interview to 60 Minutes, as a result of which her identity became widely discussed in the traditional media (although it had been readily accessible on the internet from the outset). In the interview, Kim Duthie admitted that she had lied about her pregnancy. Duthie subsequently admitted that she lied about her involvement with Nixon but she may have been lying about her lying. At the time of writing, neither Riewoldt nor dal Santo has taken legal action in relation to the invasion of privacy. As a result of this affair, the AFL Players' Association called for the introduction of effective privacy laws, not only for players but for all individuals. The AFL also conducted a session for rookie players on how to use social media appropriately. This incident clearly demonstrates how vulnerable high-profile sportspeople are to having their privacy invaded and how inadequate existing legal protections are to provide them with a remedy.
Even if sportspeople have the benefit of court orders protecting their privacy, they may nevertheless find their private lives exposed by virtue of internet technologies. The recent experience of Manchester United footballer, Ryan Giggs, underscores this. Initially known by the pseudonym, 'CTB', Giggs obtained an interim injunction, preventing former Miss Wales and Big Brother contestant, Imogen Thomas, from giving an interview with The Sun newspaper about their relationship. Giggs suggested, and Eady J accepted as arguable, that Thomas was attempting to blackmail Giggs – an allegation rejected by those representing Thomas. Even though the court orders extended beyond traditional media, the social media platform, Twitter, allowed individuals to speculate as to the identity of 'CTB'. A large number of names were suggested, although Giggs‟ name predominated. So concerned was Giggs that he commenced proceedings against Twitter for breaching the injunction. Eady J refused to vary the injunction to allow Giggs to be identified on the basis that his identity had become public via Twitter. This was not the end of the matter. The Scottish newspaper, The Sunday Herald, acting on advice that an injunction issued by an English court was not binding in Scotland, published a front page photograph of Giggs with the word, 'CENSORED', written in a black bar across his eyes. Although it did not name Giggs, he was clearly identifiable. The newspaper contained substantial coverage of the case and explained why it had decided to disclose Giggs' identity: it was concerned with the pernicious effect of injunctions and superinjunctions on freedom of the press and open justice. As a result of its conduct, The Sunday Herald was threatened with contempt proceedings. Giggs' injunction was further subverted by John Hemming, a Liberal Democrat parliamentarian, who named Giggs as 'CTB' under parliamentary privilege in the House of Commons. Tugendhat J refused to vary the injunction to allow Giggs to be named on the basis that he had been named in parliamentary proceedings. However, the combined effect of these three forms of disclosure was that Giggs became widely known and reported in traditional media as 'CTB'. Newspapers speculated whether Giggs was "the new Tiger Woods" and whether his sponsorship deals were in jeopardy. The United Kingdom Attorney-General, Dominic Grieve QC warned that tweeters who breached injunctions in privacy cases were exposing themselves to punishment for contempt of court. Revelations about Giggs' private life continue to emerge, with the most recent, at the time of writing, being the allegation that Giggs had an eight year affair with his sister-in-law, as well as liaisons with his mistress' mother and a third, undisclosed lover.
Paradoxically, privacy protections are developing at the same time that internet technologies with the potential to subvert these protections are burgeoning. It may not be possible to protect privacy through absolute secrecy and prior restraint. For lawmakers and legal advisors, the experience of Ryan Giggs provides a salutary lesson. Whilst plaintiffs might prefer to avoid an invasion of privacy in the first place, the balance of competing interests might favour allowing media outlets to publish and then allow plaintiffs to sue for damages, mirroring defamation cases.
