Peter A Clarke

The Australian has been the most active media outlet on the question of a statutory right to privacy.  It’s coverage has been generally hostile and some of its writers has been vociferously critical and sometimes to the point of being addled.

First out of the blocks is Proposed law to award privacy invasions up to $150,000 damages which provides:

CITIZENS claiming their privacy had been invaded would be in line for damages of up to $150,000 without having to prove economic loss under a proposed blueprint for new privacy laws.

But the Gillard government has committed to protecting freedom of expression and public interest reporting if it creates a legal right to sue for serious privacy invasions.

A discussion paper released today examines how a legally-enforceable right to privacy might work.

The paper acknowledges that there could be circumstances in which privacy invasions could be justified in the public interest.

Under one possible model, proposed by the NSW Law Reform Commission, an individual suing a media company for breach of privacy would have to prove their right to privacy outweighed the public interest.

But, under an alternative model put forward by the Victorian Law Reform Commission, the burden of proof would lie with the media company defending such an action.

The paper canvasses a possible cap on damages for privacy breaches, noting the NSW Law Reform Commission suggested a maximum payout for non-economic loss of $150,000.

But the Victorian Law Reform Commission argued that given “the modest sums likely to be awarded in cases of this nature … a statutory cap on damages is unnecessary”.

Privacy Minister Brendan O’Connor said a right to damages for privacy breaches could be quashed if was found to be in the public interest.

“The government believes that if there were to be a statutory cause of action for serious invasions of privacy, then it would have to have regard to freedom of expression,” he said.

“If it is argued that a person’s privacy has been invaded but it is in the public interest, then that would vitiate, I would say, a cause of action if a cause of action were to be implemented by the government.”

The paper’s release follows the government’s decision to revisit, in the wake of the UK hacking scandal, the Australian Law Reform Commission’s 2008 call for protection against serious invasions of privacy.

Submissions on the discussion paper close on November 4.

And the debate begins…