The internet and, in particular, social media, has created an indelible impact on all our lives. Whilst most of this impact has been incredibly positive and powerful, globalisation, in its typically dichotomous way, has delivered as much evil as it has good. I don’t particularly want to discuss or resolve the world internet / social media problems. That would take forever. On a less grand scale, I do want to cast the spotlight on the Mitchel Pearce saga and, in particular, the implications that may stem from any pending litigation as a result of THAT video.
I should state from outset that I am not a legal expert. Hence, any comments in relation to this matter is merely an expression of opinion rather than interpretation of law. Great! Qualifier out of the way.
Given that Pearce has just returned from a voluntary rehabilitation exile, interest will no doubt surround what punishment the NRL Integrity Unit and, indeed, the Sydney Roosters will take against Pearce. However, the more intriguing matter is whether the Roosters will pursue action against those who distributed the video footage and gained profit (reportedly in the vicinity of $65,000) from selling the footage to media. This brings to light some very provocative and broader legal issues in relation to Privacy and Defamation laws.
Should the Roosters pursue legal action against the people involved in “selling” the footage of a drunken Pearce performing, among other things, a sex act with a dog? What is the likely implication of such legal action? This is where we start opening the can of worms.
For my knowledge, there has never been a civil action case for invasion of privacy. Likewise, my understanding is there is no legislation dealing specifically with defamation on the internet (this includes social media). Let’s stick with defamation for the time being.
“Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule (trivial ridicule or good natured humour is less likely to be problematic than derisory ridicule).
For a defamation action to be successful, it must be established that the communication:
- was published to a third person, i.e. to at least one person other than the plaintiff (person/entity defamed).
- identifies the plaintiff, for example, by name or by a reference to a small group of people, etc.
- contains a defamatory statement or imputation (whether intentionally published or not).” – https://www.efa.org.au/Issues/Censor/defamation.html
My qualms with the Pearce case is the apparent intent by the perpetrators of the video footage to wilfully and callously make profit from damaging a person’s (in this case, Pearce) reputation. One of the alleged text messages from the perpetrator read “Thinking about selling it [the video footage of Pearce] to the Daily Mail to end his career”. To me, that is where I draw the line. Unlike the Todd Carney images, where Carney was photographed urinating on himself, the Pearce case involves an apparent (and alleged) malicious intent to, not just get the images out to the public forum, but a contrived and wilful plan to “end his career” AND profit from this arrangement. This is where the Sydney Roosters may have some cause to seek legal retribution.
Compare this to the Carney case where the images were irresponsibly released without schematically attempting to profiteer from an opportunistic moment. How is this any different to paparazzi snap shots which are taken and on-sold on a daily basis? This is where it can get grey. And this is where there needs to be some legal clarification on what constitutes “defamation” and what the legal liability for defamation case ought to be. Unless there is some immediate clarification by the courts, it would only encourage the incidence of renegade photographers to pursue the “next big news item”.
Should any clarification of the privacy or defamation laws with respect to internet or social media images apply only to public figures such as celebrities and sportsmen/women? Let’s be honest, we’ve all done something stupid behind closed doors or away from prying cameras. If some unscrupulous person decided to post the images on social media, what is our legal recourse? There have been “Breach of Confidence” cases in the past but, as far as I’m aware, the law in this regard is still very ambiguous.
Ultimately, if you don’t do anything that may be incriminating, then you don’t have anything to worry about. What Pearce did was inexcusable. He knows that. But, in my opinion, what the perpetrators did was morally and, should be, legally wrong. If the Roosters decide to pursue legal action, it will be fascinating to see what the outcome (if any) of the Pearce case will be. This has far reaching implications and the potential of a much broader society impact. Stay tuned.