Peter A Clarke

It is hardly controversial to say the Australian press are deeply suspicious on a statutory or common law right to privacy.  Journalists regard the defamation laws, even as amended, as unduly onerous.  A privacy right overlay is generally regarded as an unnecessary intrusion into a press’ ability to report and investigate.

The Australian has taken a line against any statutory right to privacy.  The Fairfax press has not been so determined.  It is interesting then that Richard Ackland in the SMH last Friday argued against a statutory right to privacy while today in the Australian Norman Lucas argues for the development of a right to privacy.  Neither is a particularly penetrating piece.  That is perhaps understandable because it is hard to give justice to a complicated issue in 600 – 1000 words.

Ackland’s piece is an interesting summary of the phone hacking scandal in the UK and the litigation that has ensued.  He takes a swing at Justice Eady for reasons which are not made clear.  Probably because Eady pushed the right to privacy action along with the Mosley decision.  He does refer to Giller v Procopets which he described thus:

In December 2008 the Victorian Court of Appeal said in a case called Giller v Procopets that the plaintiff was entitled to compensation for breach of confidence as a result of her former partner showing a video of their sexual liaisons to her friends, family and employer.

Among other things, the court granted damages for mental distress, which was a big legal leap.

While the grant of damages for mental distress was significant it is hardly the big leap he describes.  To set the bar so high as to require psychological damage would be to have any claim for privacy still born.

He concludes by saying:

So far privacy law, as a separate animal, has been slow to develop. Breach of confidence has stepped into the field and is developing rapidly. A legislated remedy of the variety being pushed by the law reform commissions is simply unnecessary.

Ackland’s logic is wanting. His description of how the law has and is developing is wrong. Giller is the only case of any weight in the area.  It adopted a breach of confidence approach to privacy, similar to the early UK privacy decisions.  The English authorities are moving beyond that approach to a discrete tort of privacy (see the Mosley case for a prime example).  I agree with legal commentators’ criticism that this approach is quite limited and does not address the issues associated with privacy cases.  The UK cases are moving inexorably to a distinct and separate tort of privacy.  And why not.  There is no good legal reason that privacy law can’t or should not be a stand alone tort, like New Zealand. Where Ackland gets it completely wrong is to claim that a “legislated remedy”, a statutory cause of action, is “..simply unnecessary.” Giller As an article it is confused mish mash of factoids and under developed arguments which don’t support his conclusion.

Whether you pick the New South Wales of Commonwealth Law Reform Commission model either proposes a tort of privacy which balances the competing interests.  Personally I think the ALRC approach is the most appealing approach.

Norman Lucas’ piece calls for the development of a right of privacy.  He finishes:

Law reform bodies are a long way from agreeing how to balance a legal right to privacy with disclosures in the public interest. Yet the potential for invasions of privacy is greater than ever. The need for a privacy law gets more pressing every day.

It really doesn’t matter that the various law reform bodies have differing proposed legislative schemes to establish a cause action for breach of privacy.  The differences are not so significant as to make one incompatible with another.  Obviously a uniform system is better than multiple state based statutory causes of action.  I believe a commonwealth statutory cause of action is the better approach.  Absent legislative action it will be the common law which will fill the void. Giller v Procopets is the first step on that road.  The High Court in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 made it clear that with the appropriate case it is prepared to consider whether there is an actionable right to privacy, in whatever guise.

The problem with waiting upon a common law solution is that it is a very slow process and one that can develop in contradictory ways.  There has been so much groundwork done by law reform commissions that the proposed schemes have an internal logic which the common law can consider as the statutory provisions are tested.