Tiger and Lara – the public, the private and the inappropriate

Tiger Woods’ announcement yesterday that he will return to professional golf at the US Masters in Augusta provides a (very loose) opportunity to discuss “how times have changed” when it comes to permissible speech.
The Tiger Woods ‘free for all’ can be contrasted to the 1998 decision of Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.  Samantha Hickey (no relation…I think) claimed to have had an affair with Greg Chappell, the former Australian cricket captain, and proceeded to tell all to the Truth newspaper because she said “…he was not quite as moral as he is trying to tell everyone he is” and she had decided “to teach (him) a lesson”.  Chappell denied the claim and – this is the kicker – successfully obtained an injunction preventing the Truth from publishing the story. 
In granting the injunction, Justice Hunt was not enamoured with what he described as “sleazy gutter journalism”, refusing to print the exact claims in his judgment because it would invite its republication in reports of the court proceedings in the more widely read and heard media.  
But how did the judgment come about? In 1988, it was not sufficient in some parts of Australia to justify a defamation claim on the grounds of truth alone.  The imputation had to be true and in the public interest (the public interest component no longer exists since the introduction of the Uniform Defamation Code). 
Hunt J ruled that the fact that Chappell was a public figure did not mean the story was inevitably in the public interest.  In his view, unless the public figure made his private activity a matter of public interest himself, that private activity could only be a matter of public interest if it had some bearing on his capacity to perform his public activities.  In the former case, “(i)f the plaintiff had in fact deliberately put himself forward to the public as subscribing to such high standards in his private behaviour, so that he could be taken as having appealed to the public for its judgment on his private behaviour, he cannot then be heard to say that the public does not have the right to pronounce judgment which he asked of it”.
Perhaps this is what Tiger Woods did, even on the Hunt J test.  New media makes these kinds of judgments so much more finely balanced.  Tiger Woods has lived out his (mainly) carefully managed life via his official website.  It depicts the carefully selected parts of his life, both public and private, which he has wanted his fans to share.  Maybe his PR juggernaut did appeal to the public for its judgment on Tiger’s private behaviour.  A favourable judgment meant more endorsements.  One can’t therefore complain about a negative one. 
The Lara Bingle ‘right to privacy’ allegations have only fuelled discussions about where one should now draw the line.  Facebook, Twitter, emails…  Maybe the shower is no longer sacrosanct territory.    Gleeson CJ would not agree, stating: “A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence”: ABC v Lenah Game Meats (2001) 185 ALR 1. 
Putting to one side the collateral fallout concerning the Woman’s Day photos, and again considering Hunt J’s comments, the fact that someone is a celebrity does not mean that every single aspect of their life should be available for scrutiny.  As Hunt J observed, if one were to accept the Truth’s submissions in the Chappell case, this would be “an open invitation to such a gratuitous destruction of the reputation of any person in public life in relation to such entirely unrelated matters”.  Yes, we love reality television and gossip magazines (including yours truly).  By doing so, we have opened a pandora’s box.  Are we ready for what it means?

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