Peter A Clarke

There is a certain predictability in the reportage when there is genuine agitation of a reform to Privacy laws. Or more accurately giving individuals a cause of action for breach of privacy.  I have been interested in this field since the 1990s.

A tried and true starting point is to claim, via a media expert not a journalist, that the laws are adequate at the moment so why do we need to have yet another form of regulation (which it is not) imposed from above.  And the Age obliges in its piece by Sandip Mukerjea a senior associate at Minter Ellison, in Little evidence Australia needs a new privacy law.  He says, amongst other things

The News of the World saga presents the best and most topical example of this. Were Australian journalists to engage in the type of conduct that is the subject of the British police investigations – and there is not a skerrick of evidence to suggest they have, underscoring doubts over the need for privacy reform – they would almost certainly be guilty of offences under the Telecommunications (Interception and Access) Act and the Commonwealth Criminal Code. The former makes it illegal to access stored communications such as voicemail and email without consent; the latter makes it illegal to pretend to be someone else for the purpose of committing an offence.

As well as criminal liability, the offender is liable under the legislation to be sued for damages by the aggrieved person in relation to any unauthorised accessing of voicemail or email. No tort of privacy required.

As far as it goes that is a fair comment. But so what! The News of the World scandal might have been a prompt for the Government to get the ALRC recommendations out of the bottom draw and do something about it but that does not mean there is a need to provide some form of protection.  And yes hacking a phone in Australia would be a criminal offence. But the suit for damages under legislation is limited and would it afford the victim a chance to commence an action and get some measure of justice for the use of that information for other purposes in a civil court.  Doubtful as the law currently stands.  So yes, the tort of privacy is required.  As a matter of logic why can not a tort of privacy exist concurrently and give the victim the option to exercise a right under one or the other.

Outside the phone hacking context, recent UK cases involving public figures such as Naomi Campbell, Max Mosley and Ryan Giggs have led many to question whether UK privacy law, armed with the right to privacy in the European Convention on Human Rights, has leapt ahead of Australia’s comparatively bland ”breach of confidence” laws. But before our MPs race to deliver second-reading speeches for an Australian privacy provision, consideration ought be given to whether the results of those cases would be any different in Australia.

The High Court has said information pertaining to health and personal and sexual relationships is the sort of information Australia’s existing breach-of-confidence laws should protect. Thus, in recent Victorian cases, the media have been prohibited from publishing confidential drug test results of footballers, and a husband was ordered to pay damages to his ex-wife for distributing a video depicting them engaged in consensual sex. Again, no privacy provision required.

The problem with a breach of confidence action is that it is necessary to establish a confidential relationship.  It is a very awkward fit and one that does not cover the field. There are any number of instances of privacy breaches which may not easily be included into such a claim in equity.  Further the English Courts are moving away from a breach of confidence basis for the claim to a stand alone tort of privacy.  So I think the decision in Australia may very well be different.

Based on these trends, one doubts that an Australian court would have much trouble affording protection to plaintiffs involved in sexual escapades, such as Mosley and Giggs. While the Mosley and Giggs cases raise serious questions about the efficacy of existing remedies for invasion of privacy (in particular, the potential futility of injunctions in a social media world), they do not provide any support for the introduction of an Australian privacy tort.

He may doubt there will be trouble.  I am of the opposite conclusion.  In any event why have the doubt?  Why not have a stand alone tort of privacy and avoid all of this prognostication.  It is hardly a new concept, clarifying by statute that which was developing in the common law.

In many ways, the Australian breach-of-confidence law is more strict than the UK law. Unlike in Britain, there is no overarching ”public interest” consideration in the Australian law. Defendants are entitled to expose wrongful or criminal conduct but only to the relevant authorities. Unless conduct is of the most serious kind, perhaps wrongdoing in public office, it is highly unlikely a court would sanction media disclosure.

Breach of confidence actions are difficult.  That the Australian Law is more strict is beside the point. The cause of action is difficult to maintain and uncertain at best.

Australian law also does not recognise a person’s capacity to place segments of their life in the public domain, and thereby lose the right to privacy in those segments. This was the basis of the British court’s decision to reject part of Naomi Campbell’s privacy claim. Campbell may well have had more success in Australia than in the privacy mecca of the UK, and we must not lose sight of this.

The nonsense of this argument is that under current breach of confidence action in Australia Campbell would be in very difficult circumstances.  More to the point a statutory tort of privacy can deal with all of these circumstances.  That Australian law does not recognise a person’s capacity to put segments of a life in the public domain can be dealt with by statute if desired.  More to the point the Australian Law does not recognise this because the law has not developed in Australia so the issue has not be properly considered in this context.

We all should be thankful we live in a country that enjoys a largely ethical and responsible media. Existing privacy and reputational protections have been instrumental in shaping this landscape. Indeed, many would argue existing laws are already too heavily weighted against free speech and press freedom. Our defamation laws are some of the most onerous for publishers in the Western world and we lack the broad constitutional protection for free speech that exists in the US and under the European Convention on Human Rights. Perhaps conscious of this, and of existing privacy protection, the High Court and Victorian Court of Appeal have been extremely hesitant to recognise a common law provision of privacy.

This pollyanish statement is pallaver.  If there is a ethical and responsible media doing the right thing then there will not be a problem.  However that is not always the case.  I tend to agree that the defamation laws are too onerous and the protection for political speech has been a disappointment.  But that is another issue.  This is mixing apples and oranges.  The fact is that the media have invaded peoples priviacy in the past and probably will do so in the future.  There is no sustainable cause of action.  The breach of confidence action is difficult to maintain absent an established relationship of confidence.  And that does not cover the field in the interaction between citizens and the media.

It would be best if the debate rose above kneejerk responses that are more assertion and prognostication rather than a proper analysis of the issues.