Australian law constitutes one of the best world jurisdictions consisted of English common law, federal laws enacted by the parliament and laws enacted by the parliament of the Australian states and territories (Carvan 2002).
However like many other laws Australian law faces challenges in the course of changing world and the law is as dynamic and elusive as any other. In this paper we will examine some legal issues in Australia and a fictional case is going to be analyzed for breach of copyright and intellectual property law, public liability and duty of care, negligence and contract, secret recording et cetera.
The case presented is a complicated one and will attract many rulings depending on who is dealing with it. The analysis is divided into scenarios as per the paragraphs of the case story so that scenario one analyzes the cases in paragraph one and so forth.
The case study story
In the fictional case story Gideon Goal, a famous footballer, is invited by the manager of a brand new hotel to stay for a weekend as a celebrity guest. He posts a photo on Face-book of himself sitting in his opulent bedroom at the hotel. Later that night, he does a TV interview for Channel X TV in the hotel restaurant.
The cameraman accidentally knocks into a fish tank in the restaurant and cracks it. Gideon Goal slips on a patch of water that leaks out from a fish tank. He injures his back and is unable to play football for two weeks thus club seeks compensation.
Three months later, the hotel launches an advertising campaign headlined “These rooms kick Goals”, and prominently featuring the Face-book photo of Gideon Goal. Gideon Goal complains, saying he didn’t know the photo was going to be used and demanding the hotel pays him for being featured in the advertising campaign.
The hotel refuses, saying that this was the understanding in offering him the room for the weekend.
A year later, Gideon Goal writes his memoirs for an Australian publisher. A freelance journalist, Jack Hack, hears from a source that the book is going to be “explosive”. He contracts a private investigator who hacks into the voicemail of Gideon Goal’s mobile phone to see if he can gain any hints about the contents of the book.
From the messages, he learns that in Chapter 2, Gideon Goal will reveal that two of his team-mates are in a homosexual relationship, but wish to keep it private. Jack Hack poses as a Work-safe inspector to gain entry to the publisher’s factory and manages to take a copy of the book which is being prepared for publication.
The Daily Trumpet newspaper contracts with the publisher for exclusive serialisation of excerpts from the book. Gideon Goal also agrees with the newspaper to invite the players featured in Chapter 2 to a hotel in Melbourne, where the newspaper has installed secret video equipment.
When they arrive, Goal begins a discussion with the players about whether they would be willing to join the public campaign for equal rights for same sex couples but the players decline.
The following day, Jack Hack releases the entire contents of the book on a website he has set up called GideonGoalsbook.com. The Daily Trumpet complains to the publisher that they have lost all the value from their exclusive serialisation rights to the book.
The players named in Chapter 2 deny the claims that Gideon Goal has made. The players say they are consulting lawyers and will seek an injunction to stop all publication of the story. The next day Daily Trumpet publishes on its website the full video of their meeting with Gideon Goal in the hotel.
In this paragraph, Gideon Goal was invited by the hotel manager in what is seen as advertising mission and he complied. The first legal implication happens in an incidence when he accepted and even posted his photo on the Facebook which is a social network.
The potential effect is that unless he restricted access to his profile picture and his on line album, everyone would access it and he could not claim if any information is copied and or distributed.
When Goal slips on a patch of water leaking from the tank whose breakage was caused by the cameraman, he got injured to an extent of missing games for his club. In law it is evident that the accident was not intended and no one can be linked directly to the accident.
This is because Goal had consented to take part in the commercial advertisement of the hotel through him as a celebrity.
It would appear that by accepting to take part he would consent to any harm emanating from his involvement in the exercise unless it is ascertained that there was an agreement made between him and the hotel to cover him up in case anything happens in the course of promoting the hotel.
However under the public utility law, since Gideon Goal was undertaking a commercial activity by being used to promote the new hotel the case can be a bit complicated (Parkinson 2001). The accident that occurred affected the club and probably fans, who missed him in the field.
Therefore the hotel under public liability; the tort of negligence and the concept of duty care, is liable to compensate the club.
Gideon Goal himself did not sue for the injuries and this could mean that he was compensated or covered but his injuries also affected the club and the fans where they were inconvenienced by having their star outside the game. This could lead to fans economic and personal losses and therefore may lose confidence with the club.
This means that the club which had contracted him incurred some damages. It can be argued that the player got injured because the hotel neglected the safety precautions on the leaking fish tank that led to the injuries, whether they were aware or not does not matter.
Although the hotel had no direct consent with the club, by hiring their star player, whether they knew it or not, accepted the burden of any liability that may emanate from Goal’s security threat.
When the hotel hired Gideon Goal, knowing that he was a celebrity, they ought to have ascertained the potential risk in case he would get any harm and therefore exercise utmost care as far as he was in the course of doing what they intended him to do (Alleyne 2003).
Otherwise anything happening against him would be a negligence of the concept of the duty of care.
The hotel used Goal’s photograph, which he had earlier posted on the Facebook when he was offered a weekend in the opulent hotel, for advertisement purposes.
While this would appear as if it is a form of piracy and impingement of a copyright, it was probable that Goal had not restricted access to his photograph so anybody could access, transmit and even copy the photograph.
Goal can not validate his claim unless there is evidence that he had restricted access as per the terms of Facebook as a social network where everybody has access. This is the only way the hotel can be sued for trespassing by either Hacking into the Goals profiles without his consent.
Jack can be sued for the breach of confidence because he accessed. This case has precedence in the United Kingdom in a law case that illustrates the effect of phone interception.
A journalist from the tabloid newspaper was jailed on 28/1/07 for intercepting mobile messages that were meant for staff of the UK royal family (Tanner et al. 2005). In the same way Jack Hack can be sued for intercepting by Hacking into the Goal’s voicemail and accessing what can be confidential information.
This can also constitute a breach of confidence because the voicemail contained information which had personal information for some two players.
Moreover recording phone conversations and accessing ones voicemail without permission is against commonwealth law and can be punishable if proved by the person whose act hurts (Leiboff 2007).
On the other hand Gideon Goal can sue the hotel if it is ascertained that there was no agreement for his photos to be used in the campaign when they offered him to stay in their hotel over the weekend.
This is because use of his photo without his consent can damage his image which under the law is protected as his personal property. Secondly use of his image without permission is a breach of privacy, defamation which under the law is a private protected area.
In case the hotel is not able to substantiate their claim that they had agreed with the Goal on the use of his image in advertisement then it can be sued for a breach of confidence too.
This case can be compared to that of David Beckham who threatened to sue a Russian firm which used his image to sell Alco-pops without his authority.
Just like in Beckham’s case the hotel’s use of Goals image in the advertisement amount to passing off Gideon Goal’s image without authorization because any breach of image rights could be damaging to Goal and his club (Chisholm and Nettheim 2007).
In this paragraph as far as Jack Hack is concerned, in journalism getting the information and facts from the Goal’s memos is not recognized by the Australian law as a breach of copyright. The freelance writer can only be sued for what can be analyzed as a breach of confidence for Hacking into Goal’s voicemail.
The other legal issue arises when he posed as a Worksafe inspector in order to access the memos of Gideon Goal. Consequently he manages to get hold of unpublished copy of Goal’s book without the permission of either the publisher or the author.
Under the common law of tort, Jack Hack can be sued for deceiving the publishing house to access the information for his gain thus causing damage and loss to both the publisher and the author. This law applies to individuals like Jack who poses as someone else with an aim of gaining some goodwill.
Jack posed as an inspector which means if the inspection bureau discovers him, it can sue him for damaging its reputation and he can pay heavily for it because this can take a course of a criminal case where he can either be fined or imprisoned if proved guilty (Butler and Rodrick 2007).
This is also a breach of copyright because he copied what can be called a substantial part of Goal’s book without the permission from either the publisher or the author.
Daily Trumpet gets a contract from the publisher to have a serialization of the book excerpt. Under such agreements no other body or person would be granted such an authority to disclose the content of the book otherwise they would have breached the contract.
In what can be seen as a breach of confidence Goal conspires with the newspaper to bring the players featured in chapter two of the book, without their knowledge of their intention to capture their discussion. There is also secret recording which involves the discussion of the two players with Goal on their sexual orientation.
Recording of conversations is governed by state and territory law in Australia where each state has legislation covering the recording of conversations without the knowledge of everyone involved (Pearson 2010).
For this case the Daily Trumpet recorded the videos of the players having conversation with Gideon Goal without their knowledge and can therefore be in trouble in case the players sue in a court of law for defamation and secret recording.
This recording is not only a breach of confidence but also intrusion of the privacy of the players and their personal information which should not be disclosed in public.
Both Daily Trumpet and Gideon Goal can be sued for a breach of confidence in disclosing the players’ personal information unless they have a strong excuse for revealing the players’ sexual orientation information and these excuses could be strong public interest like the public health or safety.
Furthermore, the case of privacy was illustrated by the Bingles v. Fevola case where Bingles sued Fevola in 2010 for breach of privacy and misuse of her image by distributing a photo he took her in the shower on the mobile phone and this case put a lot of pressure on the Australian law (Chisholm and Nettheim 2007).
Since the aim of Goal, can be alleged, was to embarrass the two players by exposing their private lives he is very vulnerable to be sued and the two can claim damages because they had declined to come public during the conversation they had with him in the discussion they had.
Jack Hack releases all book content on a website GideonGoalbook.com thus bringing it in the public so that Trumpet complains that it has lost their exclusive right for serialization of the book.
It is true that the Daily Trumpet had lost all the value for exclusive serialization because once the content of the book was in the public domain they could not expect any value for what they intended as new information.
The first blame goes to the publisher who could not exercise care when publishing the book thus Gideon Goal can sue them for negligence of duty of care.
This is unavoidable obligation on those whose work affect the public and for this case the publisher can be required by the law to compensate or provide damages to Goal and Daily Trumpet because it was out of their negligence that both suffered economic loss.
A precedence case similar to this is the ABC media house in 2007 where it was deemed to have failed in its duty of care by revealing the identity of a woman in Victoria who was the victim of rape (Thompson 1994).
The duty was an obligation recognized by the court because of a separate criminal law in Victoria which obliges the media not to identify the victims of sexual attack, once the attack has been reported to police.
In the case of Goal’s book, the publisher is obliged to keep secret and safe all works undergoing publication for the sake of copyright law and therefore anyone who leaks the information is liable to a breach of law and can cause great damage to the author.
The players who were featured in the video taken secretly when they were discussing with Goal can sue for a breach of private rights but this holds as far as the information was not a public interest and had no public value.
Lastly the players named in chapter two of the book can seek an injunction for further publication of the book because the book breaches their confidence by publishing their personal life details and relationship.
A precedence of this case can be taken from the Loreena Mckennitt’s case of December 2006 where the Canadian song writer succeeded in preventing a book for former personal assistant from being published because it contained details about her personal life and the court ruled that it constituted a breach of confidence (Leiboff 2007).
The case story of Gideon Goal is a convoluted case touching on many areas of law from intellectual property law, copyright law, public liability, duty of care, secret recording and breach of confidence and the list can be endless upon critical reflection of each case in the story.
That is why there can be as many rulings to these case story scenarios as there can be judges.
One thing noted in the analysis is that there can be no absolute judgment because even the Australian law itself, like other laws in other jurisdictions is very dynamic and the age of computers and electronic has presented a challenge on the jurisdictions where there is lack of precedence in some cases.
Australian entire law enterprise is in a state of making and some laws like those regarding electronic cases are taking shape day by day.
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Chisholm, R. and Nettheim, G., 2007. Where law comes from: case law. 7th ed. Butterworths: LexisNexis, p.45-72.
Leiboff, M., 2007. Creative Practice and the Law.1st ed. Pyrmont, NSW: Thomson Lawbook Co, pp.178-9.
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