Lara Bingle's chances of successfully suing Brendan Fevola, for making that nude photograph public, are limited by Australian privacy laws, according to a HopgoodGanim's technology lawyer Michael Morris.
The head of the firm's intellectual property and technology practice explained that the circumstances in which the law can intervene to prevent a photo of an individual being distributed without permission are limited.
"Australian privacy law offers very little protection for individuals," Morris said. "Under our privacy laws, it is quite possible that ordinary people would have little or no legal right to prevent the unauthorised use of their image."
To succeed, Bingle would need to prove that the publication of the nude photo is defamatory or a breach of confidence, according to Morris.
"Bingle may be able to argue that the publication of the naked photo has defamed her because it implies that she is the kind of person who would willingly allow others to take non-professional or non-artistic nude photos of her, which in turn may lower others' estimation of her."
Morris also said that Australian laws of confidentiality will not protect Bingle either. Confidentiality laws impose some restrictions on taking unauthorised photos, according to Morris, but only where the photos are highly personal, such as photos of sexual situations.
Pointing out the common argument that Australian law doesn't adequately protect an individual's privacy, Morris said: "If Lara Bingle chooses to begin the legal action she has threatened, it may give the Australian courts a chance to consider whether an individual's right to privacy should exist and, if so, what the scope of that right should be."