FCW Lawyers

Faux footy fans: The media and mental health


When public figures face mental health struggles, the media can seek to uncover all the details. But is it really in the public interest to know sensitive information about a person simply because that person is in the public eye? And does disclosure of someone’s sensitive information expose them to risk?

Over the past few years, many high-profile Australian Rules Football players have taken time off to recover from mental illness. Sporting stars face intense scrutiny and this doesn’t abate when a player requires privacy for health reasons.

I recently watched a press conference with Freemantle Football Club coach Ross Lyon in which he carefully and properly explained it was inappropriate to disclose the clinical and personal details of player Jesse Hogan. The conference was called, I suspect, to put a lid on the media that was digging for detail on a young man’s mental health after off-field problems.

Yes, the questions of reporters were cloaked in concern, but the hunt was for details around this vulnerable man’s health. As a father and grandfather, could I ever think the nature of my child or grandchild’s mental health was in the public interest?

I don’t doubt that where a public figure exhibits odd behaviour there is a public interest to know why. But do you need the clinical diagnosis? I don’t think so. Do you need to know the level of illness, the treatment or prognosis? No! It is just salacious, prurient gossip that is reckless about the consequences to the young man.

An AFL or AFLW player is an employee. Like every employee, they are protected by privacy legislation that makes it an offence to release private and sensitive information about their health without permission. Health information is sensitive information that can only be collected, disclosed and used for the purposes of employment, and any broader disclosure requires the employee’s consent. There is no doubt that Jesse Hogan consented to the release of this sensitive information. But Lyon was right to remind us how prying into this vulnerable man’s life, in such a public way, created risks for him.

It is worth reflecting upon the risks of disclosing sensitive information without the employee’s consent. The penalties for breaching privacy obligations for sensitive information are up to $1.8m. Health information is covered by numerous sources of law (specific health privacy legislation in Queensland, Victoria, NSW, Northern Territory and the ACT; state, territory and federal privacy law covering government and non-government bodies; and potentially, the common law).

It will not be long before the common law tort of invasion of privacy develops respected jurisprudence in Australia as it has in the United Kingdom and New Zealand. The conduct of the media around such issues such as Jesse Hogan’s health provides a momentum to reign in the more reckless behaviour. The leading case is a Victorian County Court case of Doe v ABC (2007),which held that reporting that had effectively disclosed the identity of a rape victim in breach of the Judicial Proceedings Reporting Act 1958entitled the victim to damages of $250,000. It is worth noting that pursuing and publishing sensitive information around an AFL player would breach privacy legislation and afford an argument for a common law claim like Doe.

The place to protect the mental health of employees starts with the employer. Safety law makes it clear that clubs must be aware that the disclosure of sensitive information would create an actionable hazard and risk making the player’s workplace unsafe. Their obligation is to monitor and protect player health, not expose them to further hazards.

Our hunger for information about the team we support and its players has given licence to the media prying into the most sensitive parts of players’ lives. Do we want to be part of this? The media is fuelling and filling our hunger for the very information that damages these young men and women.

The AFL CEO said recently, “mental health, I think, is the biggest issue in our industry now”. Can anyone tell me how prying into the details of a young person’s mental health – something that is neither legal nor moral – can assist these young players in managing their vulnerable mental health?

I think it is time that we, as parents, siblings, aunts, uncles and partners, say ‘no’ to this intrusive and shameful behaviour, and call it out. It is wonderful to see the AFL and other sporting organisations acknowledge the truth of mental health issues and respond. It is up to us all to be respectful of people with mental illness and stop the intrusive encroachment into their privacy. Being a public figure makes you open to public comment and having a mental health issue makes you even more vulnerable.