*THIS INFORMATION SHOULD NOT BE CONSIDERED LEGAL ADVICE, NOR SHOULD IT BE CONSIDERED AS A FULL OUTLINE OF ISSUES OF PRIVACY. SHOULD YOU HAVE ANY CONCERNS OR QUESTIONS, PLEASE CONTACT THE WRITER OF THIS BLOG*
Note 1: ***
Sex workers do not call themselves pseudo names simply because its glamorous to do so (okay, sometimes its very marketable to have a glamorous name!). However, a name separating what you do as a sex worker from the life you lead outside of your occupation can sometimes mean the difference between life and death. It can also protect a sex worker from the destruction of their family life, their other work choices and general separation between the persona they have while they work and the life they lead outside of the job.
What is the risk of being outed?
The risk is real. I hear it happening all of the time and it really, really bothers me.The destruction that it causes can be immeasurable. Another day, another sex worker being “outed” by someone they thought they trusted, or someone they didn’t trust but somehow did some clever investigative work to find out more about you. Will I, as a lawyer, ever be able to guarantee to a sex worker that you will NEVER be “outed”? No. That would be negligent of me to do so. You can however take a whole lot of preventative steps and there are a few options available if the threat of being “outed” becomes a real (and scary) one.
Privacy in Australia
Courts have struggled with this concept for centuries. Does a human have a right to privacy? How far does that privacy extend? Even more relevant is the issue of celebrity, and the idea of whether a celebrity who seeks out public attention should then be afforded the protection of a right to privacy. In England, Naomi Campbell was successful in suing a newspaper that published the supermodel walking out of a rehabilitation clinic. It was one of the more high profile “privacy” law suits in England. So, it can be said that over the last 20 years, England has developed a relatively solid right to privacy. Sadly, the same cannot be said for Australia. We nearly got there in 2001 but the High Court of Australia left it open. Its yet to be revisited. We have had to rely on laws regarding data protection, trespass and breach of confidence.
Brief Disclaimer Before I Proceed
I will focus on this concept of breach of confidence because this is where I think there may be an ability to take action with respect to the possibility of being “outed”. If this is successful suit, it could lead to the ability to injunct (ie. prevent) a person from disclosing, damages suffered and other remedies. Importantly though, note it has not been tested in court in this context, I do not hold myself out as being an expert in this area, nor should you consider this as definitive legal advice. Its my academic brain working.
Breach of Confidence
To qualify, the secret information must have a “quality of confidence” about it. Something in the nature of the information must be confidential. This usually means a “trade secret” but I would like to see a court consider whether the real names of sex workers would be considered sensitive enough and confidential enough to warrant the releasing of that information to be a breach of confidence. The problem is that a breach of confidence claim has been lost where the information has been released to such an extent that it is no long confidential. There lies a legal problem. I intend to do greater research into how reliable an action for breach of confidence could be in a sex worker situation. I foresee this as being an action that could be taken if there has been a threat to release information, or an actual release of information.
Things You Can Do To Protect Your Real Name
- Make it very clear to whoever you are informing of your real name that it is “strictly confidential”. This puts them on notice that the information could bring about a breach of confidence if disclosed without permission;
- Be very careful to whom you give your identification. If you have to, go Legally Blonde on them and produce a simple Non Disclosure Agreement (one can be obtained by me and you can use it as a pro-forma document). Its never nice to ask someone to sign a legal document but as a lawyer, I would far enjoy taking action for a contractual breach of confidentiality than have to try and rely on this “breach of confidence” idea I’ve proposed.
- Don’t ever leave your personal items such as your purse or handbag in the open while at a booking – all it would take is a trip to the bathroom and a sneaky person to go and have a look. Place personal items such as drivers licence in a hotel safe.
- This applies if you are out in public at an event where you are working using your sex worker name. Get into the habit of always taking your purse or handbag with you to the bathroom (if you don’t already do so!). If you are buying drinks or food, pay with cash so that you do not have to expose your credit card or bank card (if you look closely, sometimes receipts put your name on the bottom – but it would only take a smart person to take that credit card number with today’s technology and link who you are).
- If you are doing things like setting up business names with your sex worker name – be very careful, because those public records can be accessed and usually those records show your Tax File Number and real name it is you that is personally setting up the business – not your sex worker name.
- Never ever use your sex worker photo as your Facebook photo when your Facebook is in your real name. I know this sounds basic, but it happens. People can easily do reverse google searches on the photo and all of sudden your Facebook real name is connected with your sex worker name.
Want More Information?
Sadly there isn’t that much out there on privacy in Australia. If you take a look at Wikipedia (which I hate to refer to usually because it doesn’t mean its authentic information) but if you click on http://en.wikipedia.org/wiki/Privacy_in_Australian_law, you’ll see how complicated things are with privacy. You’ll see some of the legislative attempts but it generally refers to the way that corporations and government agencies handle our information.
Here is a really really good academic article on how problematic privacy is in Australia but it does go into my concept of there being a possible breach of confidence argument. If you have nothing better to do with your time, have a read! http://www.austlii.edu.au/au/journals/UNSWLJ/2003/4.html
Lastly, if you want to have a chat to me about anything contained within, please do not hesitate.