Peter A Clarke

Professor Megan Richardson, Professor at the University of Melbourne and expert in privacy law, has prepared an interesting paper titled Too Many Academics? The Experience of Privacy Law Reform.  Her thesis is that the chattering amongst the various academics and the range of reports from the law reform bodies has diffused and confused the message for reform which in turn has reduced the likelihood of reform being enacted.  There is no doubt that the proposed elements of a proposed tort of breach of privacy differs between reports.  But is that what has privacy law reform stuck in the long grass.  I doubt it.

Part of the problem is as Prof Richardson describes:

It is already very clear that there will be opposition from parts of the media to any proposals for privacy law reform, with some quite persuasive arguments being mounted – for instance, that we have got along fine without legislative privacy protection in the past; that the common law provides or will provide sufficient protection where needed including through the equitable action for breach of confidence which has been recognised by courts as giving considerable protection against the misuse of private information; that Australian media are generally self-restrained; and that there are large segments of the population who don’t care much for privacy anyway.

to which she counters:

Each of these arguments can be countered: for instance, that the common law’s protection of privacy while good suffers from some uncertainty and lack of transparency; that although the media may be generally self-restrained there have been cases involving media defendants and anyway controlling the media is not the only concern; that although individual preferences for privacy may vary individuals may still legitimately desire a degree of individual control on matters essentially going to personal identity. But until there is a clear consensus on the shape of privacy law reform, I suspect that for Australian legislators it will be all too easy to stick with the devil we know.

In my view the problem is not one of advocates of privacy reform speaking with one voice and having a uniform coherent proposal but rather the inherent problems with any significant rights based reform.  The Defamation law reform which culiminated in the Defamation Act 2005 came about after years of grinding and exhausting battles between stakeholders.  On that issue the media was all for reform.  Legislatures are very very cautious on rights based litigation and more importantly rights based litigation which may affect those in the political milleau.  Privacy Law Reform directly affects the media and those in the media spotlight. Differently.  There is a question of the pressing need for privacy reform though there are regular if not continuous episodes of privacy breaches which keep the issue alive. What is needed is a major breach of privacy which inspires action or a genuine effective activist Attorney General who will simply press on with legislation.

As the list of reports grow and legislatures consider them before pressing on with legislation which appears to be more urgent the common law has slowly come to grips with issue.  The start has been Giller v Procopets.  In following the UK line of authorities the Court of Appeal opted for a very restrictive form of action. I doubt it is a sufficiently flexible vehicle to deal with modern nad real breaches of privacy where there is no public interest issue at stake.  Whether the law will grow or law dormant is the real question.