David Rolph, Professor at the University of Sydney Law School, is considered the leading academic expert in Australia on defamation law. Rolph tells us how reading a high-profile case in the newspaper while still a teenager ignited his love of defamation law and set him on the path to a successful career.
Ettingshausen v ACP was one of the most high-profile defamation cases of the 1990s. Andrew Ettingshausen, a prominent footballer who played for the Cronulla Sharks, was selected to go on tour with the Kangaroos to the UK. A freelance journalist and photographer went along to document the trip and put together a book to raise money for a children’s hospital charity.
During the tour, the photographer had unlimited access to the players. To promote the book, HQ magazine published a front-page story about it under the headline “Hunks”. The picture featured three footballers, including Ettingshausen, in the shower.
As Ettingshausen alone was facing the camera, only his penis was visible in the image. Outraged, Ettingshausen sued for defamation, arguing that the article suggested he had deliberately allowed the naked photograph to be published.
At the trial, he won and was awarded $350,00 in damages. There was an appeal to set the decision aside on the basis that the award was manifestly excessive, which the court did. Four years later, a retrial was ordered and Ettingshausen was awarded $100,000 in damages.
As you might expect, there was widespread media coverage about the trial. The case started in 1991 when I was in Year 11 and each morning over breakfast I’d read about the trial, completely enthralled.
The case continued to play out as I went through university and the ultimate trial occurred when I was in my third year at law school. That gives you some indication about how speedily civil justice can operate in NSW.
The case solidified my intention to study law at Sydney University. I honestly couldn’t believe people were being paid to work in an area of law like this – an area which is not distressing in the way family law or criminal law is, yet still deals with real tragedy. Equally, it was not dry like my impression of a lot of commercial law; rather it was alive and thrilling. It involved sports stars, celebrities – even private parts.
The case gripped my imagination and I became fascinated with defamation as an area of law. It set me thinking about the role of media in our society. How should the media be held accountable? What is defamation law there to protect? What sort of protections should be afforded for privacy?
After all, the Ettingshausen case was not so much about his reputation, but more an invasion of his privacy. It made me think about the relationship between celebrities and their use of defamation law.
Ultimately, though, it made me question whether defamation law does what it sets out to do.
Ettingshausen has mentioned that he regrets suing for defamation because even though he won, it didn’t stop people teasing him mercilessly about it for years to come.
The Ettingshausen case was the stimulus for my doctoral thesis in which I wrote about reputation, celebrity and defamation law – this later became my first book. So, it would not be an overstatement to say this case, which I first read about over the breakfast table in Year 11, had a life-changing impact. It set me on the path of researching and teaching defamation law, which is what I’ve done ever since.