The PFA has joined with the AFLPA in urging that the Australia Law Reform Commission (ALRC) include the protection of image rights and private medical information in its recommendations on changes to Australia’s Privacy Law.
The proposal on “image rights” would prevent anyone from using a person’s name, likeness, voice or other such information without that person’s consent. PFA’s proposal is to vest control of image in the individual, and protect its appropriation and/or exploitation by others. This would provide someone with both personal and commercial control of the manner in which his or her personal information is used.
Currently, any Australian, celebrity or not, can have his or her personality appropriated by another without his/her consent and against his/her will. The only protection comes from “back door” methods such as:
protecting the rights of consumers to not be mislead, such as about whether an athlete has endorsed a product;
protecting their public reputations against defamation where the use of the image would lower his/her estimation in the community;
protecting persons who have copyrights in expressions of their images;
protecting those aspects of their images that are capable of being registered as a trademark, such as a nickname or signature;
protecting the trademarks of their clubs, (such as in jerseys) where those are in conjunction with the use of the athlete’s image, and
protecting their contractual rights where they have negotiated limits on use of image in exchange for other consideration such as an endorsement or public appearances.
None of the above provides complete protection to athletes’ images.
The submission to the ALRC emphasises that the protection sought for Australian individuals is similar to protection already provided to other entities involved in sports matches and to athletes in other countries.
At any given sporting event, the athletes are the only participants who are not protected against the unauthorised exploitation of their “identities”.
Sporting events in Australia are covered by ambush marketing laws which prevent persons and companies from associating themselves with a sporting event without that event’s authorisation.
Clubs are protected by trademark and copyright laws. The Trademark Act protects Clubs’ logos, Guernseys and other identifying marks from unauthorised use by others. Copyright laws protect game tapes and broadcasts.
Broadcasters are protected by copyright from the unauthorised publication of the broadcast. Not only can they prevent the copying of footage, they can prevent the public display of the broadcast such as by a pub or social club.
Singers of the national anthem are protected by the Copyright Act which grants them ownership of their sound recordings and prevents them from being recorded without their consent.
Sports writers and photographers are covered by copyright. No one may publish their articles or photographs without authorisation.
Sponsors by protected by trademark and ambush marketing laws in the same manner as events and clubs.
Other developed countries, including the US and EU countries, protect personality as a privacy right. Thus, an Australian player in Europe has his/her rights protected in a manner unavailable in Australia. International players who come to play in Australia lose protection of personality rights.
Australians should not be afforded less protection of their personalities than people of other developed countries. Australian athletes should also have their personalities protected at least as effectively as Australian law protects the same types of rights in corporate and business entities.
Protection of Medical Information
The submission to the ALRC proposes the media exemption to Privacy Laws require that media organisations commit to refrain from publishing an individual’s medical information.
Currently media organisations are exempt from the Privacy Act if they publicly commit to ‘standards that deal with privacy in the context of the activities of a media organisation’. There are no criteria that the standards must meet.
Medical records are protected from public scrutiny to enable people to comfortably obtain medical assistance and advice based on completely disclosed medical information. This is especially important in connection with conditions that might evoke public opprobrium or private shame, such as drug dependence, mental illness, sexual dysfunction, or communicable disease. Fear of public scrutiny might keep someone from seeking treatment aggravating the condition or, in the case of a communicable disease, putting others at risk.
The interests in protecting privacy of medical records far outweigh any other public interest in connection with those records. The public’s right to personal information is limited to information in which it has an interest, not in which it is merely interested. The media should be required to accept and act on that difference.
What you can do
While the date for submission to the ALRC has passed, you can still urge your representatives in Parliament to amend the Privacy Act to include protection of image rights and medical information.
You may wish to cut and paste the following and email it to your representative:
When amendments to the Privacy Act are considered I urge that you amend the Privacy Act to:
- provide a statutory cause of action for invasion of privacy. Included in the express definition of “invasion of privacy” should be the use of an individual’s, name, identity, or likeness or voice without authority or consent; and
- require
- that the office of the Privacy Commissioner establish criteria for assessing the adequacy of media privacy standards for the purposes of the medical exemption
- that the criteria for assessing the standards include that the standards contain a prohibition against publication of an individual’s personal medical information.
We will continue to advise of the progress on this issue and of any action that you make take to help further your rights.
