Phone hacking settlement – another reason for an enforceable right to privacy

July 10, 2009 |

Today’s report from the Guardian Newspaper on line Murdoch papers paid £1m to gag phone-hacking  that News of the World had hacked into phones of celebrities and taped their conversations.  In a related article Trail of hacking and deceit under nose of Tory PR chief said:

Among those whose privacy apparently was illegally violated when British Telecom was conned into handing over their addresses and/or ex-directory numbers are Nigella Lawson (four times); Patsy Kensit; Jude Law and Sadie Frost; Lisa Snowdon (three times); Anne Robinson and her former partner; Carol Caplin; Lenny Henry; Vanessa Feltz; Lord Mountbatten’s grandson; and witnesses to the murder of Jill Dando, thus potentially interfering with the course of a live police inquiry.

Why the British Police didn’t tell the people whose privacy has been compromised is beyond me.  Their rights have been infringed.  It is not enough for the police to prosecute the offences.  If they know a person’s property has been trespassed upon they would notify the owner.  Simple as that.  Why the mystery of phones or computers? 

In the Australian/Victorian context there is probably a breach of the Telecommunications Act for obtaining the phone details illegally and for hacking into the phones and a breach of the state Listening Devices Act for taping the conversations. 

But none of that gives the persons whose privacy was breached any great comfort.  It is their rights that have been violated.  Under Gillers v Procopets there is a reasonable chance of being successful though it might be hard to show there there was an intention to cause distress or humiliation or whether there was humiliation.  Frankly a breach of privacy like this should be actionable per se.  That is damage should be presumed.  Hacking into private communications is like rummaging around somebodies personal effects on their property.  The difference is that physically going onto one’s property without consent or licence and rifling through one’s things is trespass and actionable per se.  But breaching the privacy of another is not.  The law needs to develop with the times. 

Under the proposed the ALRC recommendation for the statutory right of privacy the test is:

Recommendation 74–1 < ?xml:namespace prefix ="" o ns ="" "urn:schemas-microsoft-com:office:office" />

Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non- exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:

(a) there has been an interference with an individual’s home or family life;

(b) an individual has been subjected to unauthorised surveillance;

(c) an  individual’s  correspondence  or  private  written,  oral  or  electronic communication has been interfered with, misused or disclosed; or

(d) sensitive facts relating to an individual’s private life have been disclosed.


Recommendation 74–2

Federal  legislation  should  provide  that,  for  the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:

(a) there is a reasonable expectation of privacy; and

(b) the  act  or  conduct  complained  of  is  highly  offensive  to  a  reasonable person of ordinary sensibilities.

In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

If these breaches happened in Australia and there was a statutory right, I think there would be a good chance of success.  The issue would be whether there was disclosure of sensitive facts.  In defamation publication only needs to be to a third party.  Given the egregiuos nature of this breach it wouldn’t be a brave submission to say disclosure within the Murdoch would probably be enough,  If it was disclosed to the general public the argument would be unassailable. 

Interesting days indeed.  Now will the Federal Government do the right thing and enact a statutory right while batting away the shrill complaints of the Murdoch Press. 






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