By Barbara McDonald
There are holes in the protection of privacy under our common law, but if Lara Bingle's former boyfriend really did pass that photograph on to others, it does not fall into one of them.
One party in a confidential relationship has the right to complain if the other breaches the duty of confidence. That has been well established since Prince Albert went to court to prevent a description of Queen Victoria's family etchings from being published by a printer to whom they had been entrusted.
As far as the law is concerned, it is simply not cricket to reveal secrets. This extends to all kinds of confidential or private information, from trade secrets to video recordings of consensual sex. Last year the Victorian Court of Appeal awarded $40,000 damages to a plaintiff whose former lover passed an intimate DVD around the couple's family and acquaintances.
A photo of someone naked in the shower is inside the "obviously private" realm, particularly within a personal relationship. If the subject is uncomfortable with it being taken, this will add to the wrong and negate any implication that she agreed. Even a willing photo of a friend in the shower would not give a green light to show it around to mates or send it to a magazine. And even a celebrity does not forgo all rights to privacy.
The position of magazine publishers is different, because they may not have any relationship with the subject. The photograph came into their possession: were they obliged to pass up on a juicy scoop?
Arguably, yes, where the photograph is obviously private or obviously taken in the course of a confidential relationship. Max Mosley, aided by legal developments since the enactment of the Human Rights Act in Britain, convinced a court his sex orgies with consensual partners were obviously private, and that News of the World had breached his privacy in publishing details leaked by a participant.
Even where a recipient accidentally comes across obviously confidential information - say, by receiving a confidential email sent to the wrong address - a duty not to disclose it arises, despite no pre-existing relationship with the person involved.
A key question in a publisher's defence might be whether the photograph was already in the public domain; however, the fact a few teammates had seen it would, arguably, not count. Contrast that with cases where one party had exposed his or her private life to the world, and now seeks, too late, to silence the other party.
John Lennon was unsuccessful in stopping his first wife Cynthia revealing "How Yoko stole my husband" because the goings-on of their relationship had long ceased to be a private affair.
In some cases the public interest may justify publication, but it is well settled that public interest is not synonymous with public curiosity or prurience. What legitimate public interest is served by publishing a four-year-old photograph of a model in the shower during a prior relationship?
In another notable shower case, Andrew Ettingshausen allowed a photograph to be taken while he and other Kangaroos showered after a game. But more than head and torso were shown in HQ magazine, and he successfully sued for defamation, arguing the photograph, with its shadowy revelation of his penis, held him up to ridicule as someone whose genitals had been exposed and that others would think less of him for ostensibly allowing the revealing photo to be published.
Where the subject clearly objects to the photograph being taken, and with little actual exposure of parts of her body not exposed before, it would be harder to argue the publication was defamatory.
Now the larger story is out, the parties are being stalked by the media to capture every detail of the fallout, raising the issue of whether there is a private sphere in a public place - for celebrities and non-celebrities alike. It is the key issue in the development of privacy law.
Naomi Campbell, J.K. Rowling, and Princess Caroline of Monaco have all persuaded courts overseas there is. But a celebrity couple can hardly complain if, having exposed the rosy days of their relationship to the crowd, the crowd wants to keep looking when things go awry.
Last year the NSW Law Reform Commission recommended a statutory action for breach of privacy to fill in the gaps of the common law's privacy protection. The media opposed such an action. They are understandably worried about a chilling effect on editorial decisions to publish, and sceptical of assurances the public interest in freedom of speech would be given due weight by a court.
For the moment, the urge to reform seems to have gone off the boil, but the gossip media should be careful not to go too far and provoke a hasty legislative reaction, which will then have grave implications for the media's ability to investigate and report on serious matters of public interest.
This is not the egregious case to provoke the legislators into action. In fact, it seems that people would not go into bat for Bingle. For some, her crime - distracting a cricketer - puts everything else in the shade.
Barbara McDonald is professor of law at the University of Sydney, and co-author of the coming book Celebrity and the Law.