'Public interest' invasions of athlete privacy cause for concern

In the age of the internet, surveillance cameras and commercial databases, protecting one’s privacy for the average Joe has become problematic.

Despite the purported rise and influence of civil libertarians, privacy is fast becoming a luxury rather than a basic right.

As we know, those in the entertainment and political sphere are routinely subject to insufferable speculation and inquisition. Although success in such endeavours might realistically equate to lower expectations, nor should power or wealth mitigate fundamental legal rights.

Similarly athletes (who for the most part actually seek to avoid the limelight) are increasingly subject to a suffocating sense of 24/7 ‘ownership’ by the media, public, sponsors, administrators and their employers. Athlete privacy has become an oxymoron.

For example, would Lady Gaga be compelled to allow male journalists (and cameras) access to her dressing room? Imagine the histrionics if she was detained three hours for random testing, including recreational drugs, moments after performing. Or had to give her whereabouts to a testing agency each day, a mental illness was made public, or criminal activity reported to her record label by police.

Or in addition to worldwide media speculation, was subject to humiliating sex tests, a la Caster Semenya.

The tabloid beast has certainly gorged on sports’ talent for attracting drama and scandal. But ‘the public interest’ is now taken to mean ‘anything the public might find interesting or titillating’. Extracting every sordid detail is purely a business decision.

Even an otherwise banal text message or ‘tweet’ becomes fodder for a celebrity obsessed ‘hyper reality’. Innocuous, low-grade misdemeanours are reported, giving a camera ‘the bird’ in the changeroom is front page news. ‘Dodgy’ social acquaintances equate to guilt by association.

Lawyer Brendan Schwab, Chief Executive of Australia’s Professional Footballers Association and General Secretary of the Australian Athlete’s Alliance, blames the media for driving the various forms of privacy invasion, for as demonstrated by the Murdoch scandal, it pays for the technology to capture otherwise private conduct.

“In response, governing bodies have tended to promulgate regulations that allow them to take so called disciplinary action, so they are seen to be tough on poor behaviour and strong guardians of their sport.

In reality, they are largely protecting commercial interests (e.g. sponsorship) and overlooking important human and employment rights – such as the right to a fair trial, the presumption of innocence and natural justice.”

Defending Tiger Woods is as fashionable as wearing plus fours, but he had a fair point that ‘personal sins should not require press releases, and problems within a family shouldn’t have to mean public confessions’.

But if compassion for Tiger is still a stretch, consider his former wife Elin Nordegren – or Bryan Cousins (Ben’s father), who by their associations have experienced outrageous intrusions.

Competitions as popular as the AFL are a fraught environment for players. Over 700 accredited journalists (nearly double that covering Federal politics) cover the game, plus hundreds more general journos such as Neil Mitchell (who controversially outed two Collingwood players being investigated for an alleged sexual assault).

Granted, athletes occasionally open the book on themselves, as catharsis or restoration of goodwill (Wayne Carey), to turn attention to a cause (Glenn McGrath) or merely turn a buck (the other 90 percent of memoirs).

However, is it reasonable to hold every athlete to the level of openness exhibited by a Ben Cousins or Jason Akermanis? Round the clock media vigils of the Tiger – Cousins – Warne calibre should not be excused, no matter how many drugs or women were taken.

Although not as tangible a form of privacy invasion, the internet has become an insidious minefield. But weigh up the odd ill conceived tweet with the multitude of ‘opinions’ posted anonymously by ‘fans’ on message boards that have particularly caused a number of footballers and their families’ enormous mental anguish.

Schwab believes talkback radio can be just as hurtful, but it is identity fraud that concerns him more.

“Players are not currently adequately protected in that they have to find the accounts and close them.

“Facebook, Twitter, and the like, should firstly have to verify any account that someone attempts to open using the name of an athlete in an elite professional sport to prevent the name from being misused, which it commonly is.

“A person’s name and personality should be protected by law just as it is under privacy legislation in many jurisdictions throughout the world.”

Meanwhile, article 14.3 of the World Anti-Doping Code stipulates that athletes who are nominated for testing are required to inform the anti-doping bodies about their current and future whereabouts for at least an hour of each day i.e. the ‘whereabouts information’.

According to WADA ‘out-of-competition tests can be conducted anytime, anywhere and without notice to athletes, they are the most effective means of deterrence and detection of doping, and are an important step in strengthening athlete and public confidence in doping-free sport.’

A few years ago a urine sample was demanded from a Belgian cyclist Kevin van Impe while at a crematorium organising the funeral of his son. Impe was threatened with a two-year ban from the sport if he didn’t comply immediately.

According to Schwab, it is a case of bureaucracy gone mad, for an athlete’s reputation and innocence can be lost for want of accounting for their location. And what of blood testing, which can reveal more than the test’s intended purpose?

Purity of competition is a noble cause, but so are athletes’ rights as ordinary citizens, and a presumption of innocence until proven otherwise.

While the AFL’s controversial three strikes policy serves to protect footballers’ privacy, out of season and recreational drug testing have met with conjecture.

“There is no doubt that drug testing regimes are going well beyond what is reasonable and effective to achieve their stated aims. There is no reason why a professional team sport needs to test athletes during their annual leave” says Schwab, who does support recreational drug testing where confidentiality can be guaranteed, and player rehabilitation is the goal.

In a similar vein, an agreement (or ‘understanding’) between the AFL and Victoria Police includes handing over secret files on players as part of efforts to combat sexual assault, match fixing, gambling and drug use within AFL ranks.

Schwab believes it is one thing for a sport to inform the police of suspected criminal behaviour (such as match fixing), but for the police to be making information available to the sport as an ordinary business, bound by the laws of the land, is another matter.

“Its regulations do not have the statutory force of the criminal law, but are merely enforceable through contract. Accordingly, their enforcement is not a matter for the police”, says Schwab.

Like drug testing, salary caps are generally accepted by players as a reasonable measure for the greater good of the game, yet it represents another avenue whereby athletes’ privacy has been uniquely eroded.

Footballers have experienced vilification by fans and critics for what they earn, and often their salaries are wrongly reported anyway.

It’s fair to say few 17 year old footballers from the bush really know what they are signing up for. And it takes time to develop the coping mechanisms to deal with the fame monster, and the apparently necessary rules constricting most facets of their life. Some never really cope. Alternatively, that someone’s post-career minor indiscretions or personal problems can generate public scrutiny hardly seems fair game, even on the slowest of news days.

On occasion, the ambiguity as to when athletes are ‘on duty’ does add a layer of complexity. Ultimately, widespread failure to distinguish their professional identities and private lives, and commodifying the latter, has done us all a disservice. Little wonder running sport has become consumed by risk management.

It’s a vicious cycle where athletes put up a wall to the media’s glare, avoid the public where possible, and constrain their true persona – leading to greater invasive techniques and outrageous hearsay as fact.

In 2008 the Australian Law Reform Commission described the Privacy Act (1988) as fragmented, confusing, outdated, complex and full of gaps and inconsistencies.

Former Prime Minister Paul Keating believes the media is so powerful that the government has been bullied out of reform. Though he was commenting on privacy as it applies to everyone, it would seem athletes would do well to have him in their corner.

“An innate right of humanity, indeed the human condition, is the right to individual privacy,” wrote Keating. “The current free for all cannot go on.”