The Henson debate comes at a time when the Australian government is considering a report prepared by the Law Reform Commission for a new statutory tort of invasion of privacy. It follows a recent trend of cases in the UK — initiated by Catherine Zeta-Jones and Michael Douglas — for a new tort of invasion of privacy as a result of being photographed by the paparazzi without their consent.

Former Victorian Supreme Court Judge Professor George Hampel QC told the Melbourne Age that the nude 13-year-old girl in Henson's photograph might be able to sue Henson for damages when she turned 18. The precise cause of action on which the girl might bring proceedings for damages was not made clear.

It has been suggested by media commentators that a common law tort of invasion of privacy may be grounds for a cause of action against Henson.

Richard Leder, media lawyer and partner at Corrs Chambers Westgarth, told Lawyers Weekly that the issues surrounding the Henson photographs primarily concern censorship.

“It seems to me that the issues surrounding the Henson photographs relate more to censorship and freedom of artistic expression than they do to privacy,” said Leder. “We recognise that some forms of expression are not acceptable.

“Child pornography is a clear example of a form of expression that our society does not tolerate. The difficulty is in distinguishing between porn and art,” he said.

Professor Hampel, who now teaches law at Monash University, questioned the capacity of the girl in Henson’s photograph to consent and the parents to consent on her behalf.

Professor Hampel said that parental consent might not be an adequate defence to any such claim. In doing so, he referred to the contempt of court case against Derryn Hinch in which the court found that parental consent to identifying a child sexual assault victim is not proper consent.

However, it is difficult to see how, in the circumstances of Henson’s photographs, lack of consent would in itself be a sufficient cause of action.

“Of itself, I can’t see that lack of consent is enough to support a cause of action,” says Leder.

“It seems to me that, at the very least, there would also need to be a complaint by the girl or her parents and evidence of harm,” he says.

Clearly underlying Professor Hampel’s comments is a concern about both the moral and legal obligations to the subjects of published material.

In April 2007, Professor George Hampel’s wife, Victorian County Judge Felicity Hampel SC, awarded damages against the ABC under a common law tort of invasion of privacy to a rape victim, known by the pseudonym Jane Doe, after she sued a reporter for naming her in three separate broadcasts.

It was the first time that a tort of invasion of privacy had been recognised in Australia. The decision follows a recent trend of cases brought in the UK by Catherine Zeta-Jones for invasion of privacy when she and her husband were photographed by the paparazzi without their consent.

However, the recognition of a new tort of invasion of privacy has the potential to impact on freedom of expression where artists use photography as their medium.

“If the decision [in Jane Doe v ABC] is good law, it has far-reaching implications for the media and will unquestionably have a chilling effect on free speech,” says Leder.

Although it will take a while for the implementation of a statutory tort of invasion of privacy, it seems that the widening of laws in favour of censorship and restrictions on freedom of artistic expression will have profound implications on artists such as Bill Henson.