Peter A Clarke

 

It is vital that there be a sensible debate on a right to privacy, for against or in between.  There is very mixed coverage of the privacy issue today.

Peter Van Onsolen’s Political parties face hard questions on how they use our personal data in the Australian is good and highlights a clear anomaly in the privacy laws. It is a good article relating to the exemptions political parties have from the Privacy Act.  It’s relationship with a statutory duty of privacy is at best tenuous.  But it is a legitimate issue.

The report Reform push ‘not based on complaints about media’ makes clear that any statutory right to privacy is not media focused. It says in part:

A SENIOR officer at the Australian Law Reform Commission has insisted its call for a legal right to privacy was not based on any “groundswell” of complaints about the media

So what?  Sometimes law reform arises out of an incident which highlights a discrepancy or gap in the law, sometimes it is a groundswell and other times there is a general review and an amendment is proposed.

The NSW acting Privacy Commissioner John McAteer has also warned the focus of the debate about privacy should not be solely on the media in the wake of the News of the World phone hacking scandal in Britain.

Excellent point and one that is obvious on its face.

While Mr O’Connor and Julia Gillard discussed the issue within the context of the events in Britain, ALRC senior legal officer Bruce Alston, who worked on the report, told The Australian yesterday the recommendation to establish a legal right to privacy was not just about the media.

“In recommending a statutory cause of action for an invasion of privacy, we were not responding to any groundswell of complaints against the media,” he said.

“And, in fact, we took pains to emphasis the media were not a particular target for the recommended course of action for a serious invasion of privacy.”

Mr McAteer cautioned against any discussion on privacy being solely focused on the media and said the “true importance of the debate” was that it had highlighted gaps in the law.

“The current debate has focused largely on allegations of breaches of individuals’ privacy by the media, and ensuing comments that such laws might ‘gag’ or limit the freedom of the press,” he said.

“However, the Law Reform Commission’s recommendations were not limited to actions against the media.”

Mr McAteer said that invasion of privacy tended to occur in instances such as neighbours spying on neighbours or people setting up surveillance cameras on buildings that overlooked public places.

He said privacy breaches often related to matters between citizens and government or customers and businesses.

“Most of the privacy-related complaints arise from an existing relationship between a complainant and the body they are dealing with, whether it be government or private sector,” Mr McAteer said.

A very sensible injection into the debate.

In the last annual report of the Office of the Privacy Commissioner, there were 216 “telephone inquiries” about theatres, sports and the media industry. This compared with 1501 calls about “health service providers”, 1011 about the finance sector, 893 about debt collectors and 240 about legal and accounting services.

It was unclear from the 2009-10 report, the last one done by the commissioner, how many complaints about the media were investigated.

Mr O’Connor this week insisted the Gillard government’s consideration of new privacy laws was not targeted at the media, but at protecting privacy across the community.

He described the Australian media as “a professional industry” and has not ruled out ending an exemption from privacy laws that extends to political parties.

Again, quite sensible. But not all coverage has been as considered.

It seems Michael Stutchbury was just warming to the task of going beserker on a possible tort of privacy when he appeared on Insiders because his  Lawsuits no way to defend privacy or free speech shows there is plenty of breath in his lungs on the subject.  Pity really.  An article long on assertion and chicken little predictions and short on analysis, legal or otherwise. It adds nothing particularly useful to the debate.  It says:

OK. That speaks for itself.  And here I was thinking re regulation was an extremist left agenda.  Proves that the end of the extreme right is the beginning of the extreme left, or visa versa.  As for a more litigious society, well any new enforceable rights sort of does that on his world view I suspect.

Her Justice Minister Brendan O’Connor has been directed to respond to the News of the World phone hacking scandal by making it easier for Australians to sue media companies for invasions of privacy. Such journalistic practice already is illegal in Britain and Australia. And there is no evidence of such Fleet Street “red top” outrages here.

Of course the focus of any tort of privacy extends well beyond a person suing a media organisation.  As the “Reform push” article makes clear above many instances that would involve a breach of privacy is the actions of individuals upon other individuals.  Such as the fact situation in Giller v Procopets.

But O’Connor claims that “mass breaches” here highlight that Australia has “no general right to privacy” and thus “no certainty for anyone wanting to sue for a breach of privacy”.

Assume the quote is accurate the fact there is no general right to privacy is accurate.  And there is no certainty to sue for a breach of privacy.  In fact such a claim is liable to lose at the moment.  The leading authority, Giller, is founded in confidence.

So the left-wing junior minister from Victoria has dusted off a 2008 Australian Law Reform Commission privacy report which, from page 2535 of its third volume, argues for an extremist “tort of invasion of privacy”.

Where a minister comes from, how senior or junior he is and what faction he belongs to is quite irrelevant to any debate.  As is the page number of the recommendation.  As for an extremist “tort of invasion of privacy” well he is in small company in that description of what is proposed.  Extremist, whatever that means in any legal or practical sense. it is not.

Yet, as the ALRC has argued previously, the concept of a general tort of privacy is vague and nebulous, a concern repeated a decade ago by then High Court chief justice Murray Gleeson. The Law Council of Australia more recently has backed the existing “appropriate and adequate recourse to individuals who consider that a media organisation has interfered with their privacy”.

It is hardly controversial that there has been considerable debate about privacy and controversy about defining in sharp terms the bounds of privacy.  Presumably Stutchbury is quoting, or more accurately extreme paraphrasing or even more accurately verballing Gleeson CJ in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1 (15 November 2001) . His Honours’ consideration of the issue, at [27] – [55], is much more involved and nuanced than Stutchbury makes out.  What Stutchbury fails to mention is that the judgment of Hayne and Gummow JJ, after a very detailed analysis, did not rule out a right of privacy particularly as their honours stated, at [132] “For these reasons, Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, “free from the prying eyes, ears and publications of others”. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome. Nor, as already has been pointed out, should the decision in Victoria Park.”  Gauldron J agreed with their honours’ judgment. Kirby J postponed the question of whether there was a need for a tort of privacy while Callinan J undertook a detailed analysis of the issue and made the following comment at paragraph 332, “Any principles for an Australian tort of privacy would need to be worked out on a case by case basis in a distinctly Australian context.”  Stutchbury’s very selective quoting of Gleeson CJ’s position absent the commentary from other justices is at best sloppy journalism. All the justices undertook a detailed analysis of the issues.  Gleeson CJ was the most conservative in approach but his comments were not as dismissive as Stutchbury suggests.  The court did not shut out a tort of privacy or other form of privacy protection.  It said this was not the proper vehicle.  What is significant is that justices Gummow and Hayne, the only justices currently on the bench who were involved in ABC v Lenah Game Meats, left the door open for future consideration of this issue.

But to understand the issue, it first has to be removed from the grip of the lawyers, particularly those with a rights agenda or a political grudge. For the economic issue is that digital technology has slashed the cost of gathering, analysing and distributing information, including about people.

Far from wanting people to understand the issue Stutchbury just goes about demonising it and those whose views differ from his own.  What is this “grip of lawyers” nonsense and what “rights agenda” does he refer to and who has a political grudge. A very strange cabal. The second sentence is quite true and an issue that highlights privacy concerns.

This has raised a host of issues from ensuring that banks and hospitals keep personal financial and health records confidential, to closed circuit cameras following people’s every move, to alarm that sex partners could post explicit video clips on YouTube.

But it still has been an overwhelmingly good thing, providing cheaper access to services and allowing people to bypass traditional media to communicate directly among themselves.

It has also raised a range of legitimate concerns and worrying outcomes.  For example it has led to an easier misuse of data and abuse of social networking sites.

The new digital technology also reduces the gatekeeper role of the traditional media: anything seems to go in social media. Yet, exploiting the NOTW scandal, Labor’s privacy tort is aimed at traditional media companies because they are a political target and because they still have deeper pockets than some random blogger or hacker.

First it is not Labor’s privacy tort.  The ALRC commenced its inquiry into privacy during the time of the Howard Government.  Secondly a statutory tort has been suggested over the years, during both Liberal and Labor administrations.  While media companies have more resources than bloggers or hackers those issues are not at the forefront of all or even most litigants minds when exercising their rights on matters that go to their privacy.  In Giller v Procopets money was hardly the main motive.  Similarly fights between neighbours over trespass and nuisance are hardly fights between moghuls. Asserting conspiracy theories is just foolish.  And childish.

The legal trick is to conflate the various digital concerns into a new form of property right: a general tort against invasion of personal privacy akin to someone breaking into your property or a home invasion. Conventional private property rights are a foundation of a democratic market economy. But a property right over individual privacy necessarily intrudes into a more basic foundation of an open society: free speech.

This analysis is incoherent at best.  What is the legal trick?  A cause of action is not a property right.  It is just wrong legally.  As polemics it is extreme and nonsensical.  Of course any debate over rights to privacy must involve a consideration of freedom of speech and to ensure that the former does not shut down the latter. But this is hardly news.  There is a right to privacy in most common law jurisdictions, New Zealand and the United States for example, and a right to freedom speech with a functioning media.

O’Connor fudges around this. And sensible people, such as my old mate Barrie Cassidy on the ABC’s Insiders on Sunday, find it hard to understand why anyone could caution against protecting people’s privacy.

Stutchbury is still smarting from the exchange with Barrie Cassidy where Cassidy definitely had Stutchbury spluttering, well and truly cornered. He came out very much second best.

The objection is that elevating privacy to a fundamental human right is designed to get around the problem that protecting it is not costless. It aims to avoid having to measure the extent of the actual problem and to figure out the most effective ways to deal with it.

Proposing a statutory right to privacy as “elevating privacy to a fundamental human right” is a debating device that goes nowhere in the debate.  Apart from that it is just wrong.  It may be a cause of action but anything beyond that is a misrepresentation.  The tenor is of some slight of hand involved.  There is not.  The question of cost, whatever that means, or intrusion is a factor that needs to be considered when drafting a Bill, which has not been produced as yet.

Hence, the Victorian lawyers’ guild argues against “any selective analysis of the costs and benefits” of the state’s charter of human rights now being reviewed by the Baillieu government.

Now Stutchbury drags part of a submission from a review of a charter of human rights into a debate for a charter of human rights.  He is making up economic theory as he goes along.

Yet getting a handle on who actually benefits, by how much and at what cost to others is central to good regulation.

Now we slide into economic theory.  There is always going to be a balancing act on the level of protection and the defences offered. A cause of action is not a form of economic regulation.  To suggest it is is to mix and confuse disciplines.

There is ample evidence of the costs of allowing such open-ended rights to take root in the legal system.

Open ended rights??? The ALRC report proposes defences.

Before being reined in over the past decade, allowing people to sue for injury to their reputation or even honour became an Australian legal absurdity that transferred money from deep-pocketed media companies to politicians and defamation lawyers.

It seems that there is an allusion to reforms to defamation law reform and a successful uniform set of laws across all jurisdictions.  And it has been quite a good result.  But what Stutchbury fails to mention is that there remains a right to sue for defamation. There was never any suggestion not to do so.  How is this an argument against a cause of action for a breach of privacy.

Even judicial officers began to exploit this legal protection racket. Without any proof of actual injury to reputation, damages for mere slights ballooned to way beyond payouts for serious workplace accidents or for common assault.

It would be nice to have some evidence for this assertion.  Perjorative terms help nobody.

Like privacy, people’s reputations are more than their own business. People rely on the reputations of those from whom they buy food, trust with their savings, take medical advice or leave their children to care for. Protecting both reputations and privacy restricts others from being properly informed by the marketplace of free speech.

Reputations are still protected at law.  A person is still entitled to sue for a libel or slander, whether by media or an individual. By that logic there should be no real objection to a right to privacy.  The restriction he refers to is an award of damages if a party is successfully sued for defamation.  The fact remains that media can still report and have done so in the past and will continue to do so in the future.

Again like protecting privacy, it similarly sounds only just that those whose negligence causes injury to others should be made to pay. But not when the lawyer-controlled courts stretch the concept so far that the public liability premiums for a local fete, a surf club sausage sizzle or a local playground become prohibitive or if insurance companies refuse to cover the risks of medical surgery.

There has been tort reform quite a while back.  Fetes continue, playgrounds continue to operate even before tort reform and after.  It is worth looking at the role insurance companies have played in keeping premiums up even when the reforms reduced claims and awards of damages.  Again, this is an argument for proportionality not against pa privacy reform itself.

Just as defamation and negligence torts have been reformed, however, the privacy tort push has gathered momentum with the European human rights agenda, been transmitted to Britain (where it mostly has enriched celebrities) and then transported to Australia via a few activist lower court judges. This has created such uncertainty, argues the ALRC, that a whole new privacy tort needs to be legislated.

There has been a call for privacy law reform long before tort reform.  More importantly it was independent of any tort reform.  The suggestion that a call for a cause of action for breach of privacy correlates with the impact of tort reform is illogical and dishonest analysis. Recommendations for a statutory cause of action for privacy breaches have existed for over 30 years.  The lower court decisions have not been the catalyst for a call for new privacy tort.  That the ALRC refers to those actions is hardly controversial.  But remember the Victorian and New South Wales Law Reform Commissions also recommended statutory causes of action.

The absurdities already extend to defining as private what happens in public spaces. On the weekend, my 77-year-old father went back to the historic North Sydney pool underneath Sydney Harbour Bridge where he swam in schoolboy competitions. He was told he could not photograph the public pool because of privacy concerns of those swimming in it.

I couldn’t agree more with this outrage on this point. The paranoia around swimming pools and where children play is as much to do with hyper sensitivity of modern times as any claim of privacy.  But how is this relevant to the present debate?  The complaint above is made without any statutory right to privacy being available,  It is questionable whether anyone could make such a demand upon any person in that situation as the law currently stands.

Languishing in the polls, the Prime Minister demands that News Corporation’s Australian arm answer unspecified “hard questions” over the NOTW phone hacking scandal. The Greens leader who props up her government, Bob Brown, calls The Australian the “hate media” and pushes for an inquiry into breaking up News Limited.

Communications Minister and Labor factional warlord Stephen Conroy complains that another Murdoch paper, Sydney’s The Daily Telegraph, is inciting “regime change”, inviting the probity concern that media regulation could be influenced by politics.

They may or may not be fair points. I think mixing the complaints about News Corporation with this issue helps nobody. But the issue of a statutory right to privacy has been discussed for years.

Yet Gillard’s privacy tort threatens all the media, not just those Labor seeks to intimidate. Putting the whole media offside is a bizarre strategy for a Prime Minister languishing in the polls and trying to sell a tax she promised never to introduce.

A privacy tort threatens nobody.  It is a cause of action.  To be used by persons whose privacy has been breached by any on, not just media.  The assumption is that it puts the entire media offside.  Barry Cassidy for one, a member of the media, sees it in more benign terms.

All in all Stutchbury’s article is a mish mash of assertion, wild exageration and a truly strange mixing of economic theory with legal principles.  It is poor analysis. It is interesting to see the comments to his on line article are strongly against Stutchbury.

And just in case anyone has missed the Australian’s position on Privacy today’s editorial, ALP out of touch on privacy, puts it all up there in neon lights:

PRIVACY might be a problem for members of the Gillard government — but only in the sense that they need to get out more.

Surely only a cabal of political operatives cloistered in Canberra could deduce that one of the nation’s most pressing issues is privacy legislation and the role of the media.

Its hard to argue that the sudden announcement to issue a discussion paper is influenced by the goings on in the UK.  But a privacy right is not limited to media.

In seeking to justify the surprise move to enshrine a tort of privacy, the hitherto very private Privacy Minister, Brendan O’Connor, has placed great store in a three-year-old report by the Australian Law Reform Commission. But in its 2694 pages, the report makes little more than a passing reference to the government’s agenda. The commission was more interested in raising concerns about how our political parties have ensured that their own computer files, collating secret details about millions of individual voters, are exempted from existing privacy laws. Rather than restricting media rights, the report was attuned to maintaining freedom of speech. So it is clear the report has been seized upon by the government’s spin doctors simply as a way to publicly bolster, or spin, their anti-media crusade.

It is true that the report does report across a whole range of issues and does recommend improvements and reforms which would assist the media.  As for the “governments agenda” this issue has been in the public domain for over 30 years and much longer in other jurisdictions.

Yet as Michael Stutchbury explains on the opposite page, this “rights” agenda must impose costs upon our society, financially and by restricting free speech. It is all the more worrying that the push is coming from a defensive government seeking to stifle criticism. Instead of citing just one example of an Australian problem that needs to be legislated away, the government opportunistically points to a breach by the News of the World, forgetting this occurred on the other side of the planet, where it is illegal, as it is here, already.

Stutchbury’s article is not an explanation of any coherent economic theory.  His explanation of legal theory is not known to me or most lawyers I imagine.  And when the two combine the result is incoherence.

This privacy frolic has the hallmarks of being conjured up by ministerial advisers who have no understanding of the priorities of working families. Instead of focusing on the serious issues confronting government, they barrack for Communications Minister Stephen Conroy as he blames News Limited for the government’s woes. Squealing about media must be easier than self-analysis. While this will strike a chord on ABC radio or in the echo chamber of university students and bored public servants on Twitter, it will not provide the desired distraction for mainstream voters. In the suburbs, people are much more likely to perceive a government losing touch with their priorities, and looking for someone else to blame.

The editorial may have a point about the government complaining about various ministers attack on News Corporation.  But that is not the same as looking at the issue on its merits.  As to what is important to individuals I suspect that they are concerned about their privacy as much as anyone else.  And on occasion they get very concerned, such as with the Australia Card.