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The Sydney Roosters have sought legal advice about suing those responsible for the now-infamous video of embattled co-captain Mitchell Pearce, in a move that could help test the limits of privacy law in Australia.
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Roosters may sue over Mitchell Pearce video
The Sydney Roosters are considering taking legal action against those responsible for circulating the now-infamous video.
The footage, taken on a mobile phone and showing a drunken Pearce simulating a sex act with a dog, caused a furore after it was sold to media outlets including Channel Nine and The Daily Telegraph.
Pearce left the country on January 29 to enter an undisclosed rehabilitation clinic. He is expected to be stripped of the captaincy, suspended for about half the NRL season and fined a substantial sum.
Multiple sources have confirmed to Fairfax Media that the club has explored Pearce's legal position, including seeking advice about whether those who filmed the video at an Australia Day party and sold it to media outlets via an agency could be sued. Channel Nine and News Corp reportedly paid a combined $60,000 for the video while Fairfax paid $5000.
The severity of the punishment handed down to Pearce by the NRL's integrity unit is likely to influence the club's decision on whether or not to proceed.
No action will be taken until Pearce returns from overseas, with the club wanting the 26-year-old to be involved in the process. It is unclear when Pearce will return to Sydney.
The case, if it went to a trial, would send a warning shot to those seeking to profit from embarrassing footage of sports stars and celebrities.
There is no civil action – or tort – for invasion of privacy in Australia. But an action called breach of confidence has been used by lawyers in cases involving the malicious distribution of sex tapes, or publication of embarrassing photographs taken without the subject's permission.
The advantage of the action in cases involving sportspeople or other professionals is that the court can strip the perpetrator of any financial gain made by selling the material, if the judge finds they had an obligation to keep it secret. A key question for the court would be whether the material in the video was confidential.
The court can also order compensation for financial loss, which could include the loss of a lucrative contract.
In 2013, lawyers for former Neighbours star Holly Valance sought an injunction to stop Woman's Day publishing photos of her on a yacht off the Italian coast, which showed her "in an advanced state of pregnancy".
The Supreme Court said an injunction would be futile because copies of the magazine had already been sent to subscribers. However, Justice Michael Pembroke hinted that if the case went to a final hearing she may have been "entitled to recover substantial damages for breach of confidence" from the publisher.
The Valance case did not proceed to a final hearing but the case pointed to a potential development of the law of breach of confidence in Australia to deal with invasions of privacy.
One of the limitations of the action in its current form is that damages for emotional distress, rather than financial loss, traditionally are not awarded. But courts in Victoria and Western Australia have awarded such compensation, including in a "revenge porn"-style case.
Head of the Rugby League Player's Association Ian Prendergast raised concerns earlier this year about an emerging trend involving sportspeople and other "high-profile member[s] of society ... being filmed in a private moment and that being on-sold to media outlets and being published".
"It needs to be clarified what's legal and whether this should become a norm in society," he told Fairfax Media in January.
The NRL was investigating alleged text messages sent by a fellow partygoer about the Pearce footage, including one which read: "Thinking about selling it to the daily mail to end his career."
The Roosters will start their NRL season without Pearce when they host arch rivals South Sydney on Sunday March 6.