The Australian’s coverage of a statutory right to privacy in the Legal Affairs Section

November 29, 2011 |

The Australian has gone all out in setting out its views on a possible statutory right of privacy,Unleashing the lawyers is not the answer to the question of privacy, Federal Privacy Commissioner backs conciliation and Lawsuits second-best option for privacy protection.

In Unleashing the lawyers is not the answer to the question of privacy the story provides:

PRIVACY is a fickle thing. Sometimes it’s obvious, sometimes it’s not, sometimes it’s questionable.

True as far as that statement goes.  But much in the law falls into that vague catch all nostrum.

There has been no outcry that the privacy of three Pakistani cricketers was invaded when the now defunct News of the World caught them, by secret cameras, in their hotel room stashing bribes.

True but what about the balancing of the freedom of expression rights.  More to the point the Pakistani cricketers were exposed and there was no privacy litigation which prevented the story from running.

We accept that investigative journalism can go so far to seek out corruption.

And the right to privacy in America and the law in the UK has permitted investigative journalism. It is not an “either or” question.

But as the parents of murder victim Milly Dowler give evidence to the parliamentary inquiry in London about the impact of the phone hacking for the News of the World, we in Australia are asking ourselves what is the best way for us to outlaw conduct which falls on the wrong side of the line.

The easy response is to say we should legislate to create a statutory action for breach of privacy, and Home Affairs Minister Brendan O’Connor has called for submissions in response to an issues paper on proposals for such an action.

It is not the easy way it is the appropriate way.

But let’s just think a bit more about that. Is such an action the best way or even necessary to remedy the mischief? Perhaps not. Tragically, Milly had probably been murdered by the time her phone was hacked. All current proposals for a statutory action recommend that it benefit only living persons, and that the action will not survive for the benefit of her estate.

But what about Sienna Miller, Elle MacPherson, Hugh Grant and anyone else (not famous) whose phones have been hacked by the media.  So Milly’s estate should not have a cause of action.  And fair enough.  There is no good public policy reasons why the deceased should have privacy protections.  But that is not an issue of controversy.

That is sensible given that the wrong is essentially a personal one. Could her parents sue for an invasion of their privacy when their daughter’s phone was hacked? Possibly it would come within the form of action recommended by the Australian Law Reform Commission as an invasion of their privacy in their “family life”.

No there should not be a right of Milly’s parents to sue.  There is no real suggestion in the discussion paper that an invasion of the family life would be specifically covered.  A draft bill will determine whether that is the case or not.

But such a conclusion is not straightforward and it would be going too far to say that there should be an action for invasion of privacy whenever a journalist investigates a missing person or interferes with a phone belonging to a relative.

If a statutory right of privacy is framed as an intentional tort rather than as a cause in negligence then the issue of “secondary victims” is not relevant.  The High Court in Williams v Milotin made the distinction clear.  The Victorian Court of Appeal in Walker v State of Victoria explicitly rejected the claim by a secondary victim for a claim arising out of an intentional tort, in this case battery.  The High Court refused leave to consider this point several months ago.  This is point has no real merit.  It has not been thought through.

So if what we are really complaining about is the phone hacking itself, let’s remedy that.

No, the issue of whether there should be a statutory right to privacy has long pre dated the hacking scandal and goes beyond media activities.  Perhaps the hacking scandal has prompted the government to ALRC’s 2008 report and the previous reports of the VLRC and NSWLRC which all recommended a statutory right to privacy but so what.  It is relevant to note that the ALRC called for a right to privacy as far back as 1979.

In fact, we already have: under a federal statute of 1979, it has been an indictable offence punishable by imprisonment of up to two years to intercept a telecommunication or to communicate intercepted information.

And the federal statute provides for criminal sanctions.  But why should that preclude a statutory right that can be enforced by the victim.  Opponents of a statutory right take a very paternalistic approach to citizen’s rights.  They either say the criminal law should deal with it, say the breaches of the Telecommunications Act, or the Privacy Commissioner should deal with it under the Privacy Act.  Both approaches take any action out of a person’s hands and gives it to public servants, who are independent of government, to take any action.  The DPP’s function is to deal with a breach.  The hurt to the victim is a consideration but not the prime consideration.  The Privacy Commissioner adopts a very anaemic “lets remedy a problem” which can be overly lenient on breaches.  It is much more accomodating and purportedly big picture.  In short the Privacy Commissioner has policy issues which can downplay or ignore what concerns the victim.  Under the Privacy Act complaints are slow, process driven and ultimately driven by the Privacy Commissioner.

Introducing an earlier act in 1960, Sir Garfield Barwick described it as making Australians comfortable in the knowledge that there will not be any intrusion in their privacy unless their telephone usage threatened national security.

And fair enough.  But what the Honourable member was referring to was state protection.  But why should the state and criminal law cover the field?  Why can not criminal law sanctions co exist with a statutory right enforceable in the civil jurisdiction.  For example if A strikes B, A can be prosecuted for assault in the criminal jurisdiction and sued for battery in the civil jurisdiction.  Recently Nick Darcy was sued for assault on Simon Cowley.  Darcy was charged and pleaded guilty to the charge of assault.  There was no controversy in Cowley suing and ultimately succeeding.  Conceptually the principles is the same with an enforceable right to privacy arising out of a fact situation which may give rise to a criminal prosecution, like hacking a phone.

Equally, if our complaint is that paparazzi or lone photographers stalk and harass Nicole Kidman or Naomi Watts when they are here on a private visit, or any other member of the community, let’s remedy that.

By both stalking laws and a statutory right to privacy.  The reality is that privacy laws have long existed in an environment of fairly aggressive media coverage.

It would be going too far to make taking a photograph of someone in an open public space a criminal offence or a civil tort. Sometimes, crass behaviour is merely in bad taste or unethical rather than unlawful. But there is undoubtedly a gap in our protection of individuals from conduct which amounts to harassment but which falls short of the common law tort of assault or would not justify the victim seeking an apprehended violence order.

Rather than bring an action for breach of privacy, Ting Lan Hong, the mother of Hugh Grant’s baby, simply relied on the British Protection from Harassment Act (1997) to obtain an injunction last week against paparazzi stalking her and her home for photographs. This act provides a useful model for legislation targeting specific types of conduct, whether they occur outside one’s home or in public spaces, in person or electronically.

Again what the author proposes is jamming a privacy protection into a piece of legislation. Good luck to Ting Lan Hong for relying upon the Protection from Harrassment Act.  But what if the act is a breach of privacy but not harrassment per se.  They are not one and the same thing.

The webcasting of secretly recorded sexual activities, as allegedly done by certain defence force recruits, illustrates the importance of existing legislation being updated and broadened to cover such examples of egregious breach of privacy.

And fair enough but the author then finds a real problem with a citizen having control over dealing with egregious breaches of privacy.

It is absurd that in a country of this size, there are differing state laws governing the use of listening and surveillance devices. If uniformity could be achieved, there is an advantage in the simplicity and certainty of the protection they can provide to individuals against intrusion that a broad-based privacy action, with all the necessary balances for public interest, could never emulate or replace.

This is wrong.  The prohibitions upon using unauthorised communications, audio or video, in the Surveillance Devices Act 1999 are measured against public interest concerns (see section 11(2)).  As usual the proposal put protections in the hands of a disinterested prosecuting authority.  It is patronising and paternalistic.

The proposals of the NSW, Australian and Victorian law reform bodies differ in some important respects. One issue is whether liability should be limited to intentional invasions of privacy or whether it should extend to negligent conduct.

Any statutory right of privacy must be an intentional tort.  The High Court has made it clear that principles are distinct and not subject to merging (see Williams v Milotin and the High Court refusing leave in the recent application of Walker v Carter).

While the current debate on privacy is essentially focused on the media, the proposed statutory actions would apply to anyone: the mind boggles at simple human errors like typing the wrong email address giving rise to a legal action.

This is assertion that has no basis in fact of what has happened overseas.  There is no suggestion that that it will be tort of strict liability.  More to the point, the proposed test relates to acts which are offensive/highly offensive to persons of normal sensibilities.  In short the bar is high or very high and the test is objective.  On that basis how could the author suggest that, all other things being equal, a wrongly addressed correspondence giving rise to a cause of action.  It is alarmist nonsense.

Another issue is the range of remedies that might be available and particularly whether there should be a cap on the amount of damages that could be awarded.

Tort reform around Australia in the last decade prevents many innocent victims of negligently inflicted personal injuries from receiving any compensation whatsoever for the distress caused. If they are subject to thresholds and caps, so too should victims of breach of privacy.

This is a live issue and seems to be generally accepted.  That said there are real issues as to why they should be imposed.  The tort reform process has led to great injustices. It was a knee jerk reaction which has harmed putative plaintiffs and benefited insurers. To argue that such a default position justifies limiting victims of privacy invasion, on the basis of comparative awards, perhaps approaches things from a curious brand of logic.  If the tort reforms have harmed innocent victims should not there be reform to bring matters to a fairer system rather than imposing restrictions on a new tort.

Only serious invasions of genuine rights to privacy should be actionable at all. Anything less is the price of a crowded, open and free society.

Fair enough.

Overall this is a disappointing piece.  The analysis is not particularly logical and, in part, quite erroneous.

In Federal Privacy Commissioner backs conciliation the focus is upon the Privacy Commissioner.  It provides:

TIMOTHY Pilgrim, the man responsible for enforcing the Privacy Act, has warned the government that its plan to encourage people to sue for privacy might be less effective than a scheme based on conciliation.

Mr Pilgrim, the federal Privacy Commissioner, says he supports strong privacy protection but believes litigation might be beyond the reach of many people and would therefore be less effective than government-backed conciliation.

The cost of litigation can be a bar.  The question of whether government backed conciliation is better is a real question and one which does not give rise to too much optimism.  The regulation of the Privacy Act has been anaemic at best.  In any event why should the Privacy Commissioner control that which is the right of another person.

His assessment of the shortcomings of the government’s proposed statutory cause of action — or privacy tort — is a departure from a scheme outlined in an issues paper published by Privacy Minister Brendan O’Connor.

Instead of creating a broad-based new civil action that would clear the way for injunctions against the media, Mr Pilgrim’s submission on the issues paper proposes an alternative scheme.

This aims to overcome what the submission describes as “access to justice issues” associated with the proposed tort.

Instead of encouraging people to resolve privacy disputes through litigation, Mr Pilgrim has called for all privacy grievances to be handled initially by the Office of the Australian Information Commissioner, which includes the office of the Privacy Commissioner.

Court action would be available only after the failure of conciliation or when the commissioner referred a question of law to the Federal Court for guidance.

The complaints process would be subject to administrative review and the OAIC or a plaintiff could take Federal Court proceedings to enforce the OAIC’s determinations.

A submission to the government by Mr Pilgrim and Information Commissioner John McMillan says that if this procedure is followed “it may be that only a small set of complaints proceed to the courts (being those in which the commissioner sees no merit in proceeding)”.

What is being proposed is effectively expanding the operation of Privacy Act to cover these issues.  The problem is that the Privacy Commissioner has created a self contained process whereby the victim has no control over his or her own complaint in practical terms.  The regulation and administration of the Privacy Act is deeply flawed.  The Commissioner’s submissions seems to want to expand that defective process.

It says the focus on conciliation instead of litigation is consistent with the emphasis that federal law places on alternative dispute resolution.

Mediation and processes to resolve prior to hearing apply in Federal legislative.  This proposal is not all that impressive.

Mr O’Connor had called for community feedback on whether the federal government should create a “statutory cause of action” that would enable people to sue each other for what the issues paper refers to as highly offensive invasions of privacy.

The proposed legal action — or privacy tort — could be used to sue individuals, companies, the media and government agencies.

The OAIC’s submission says it is critical that any cause of action is formulated in a way that recognises that the right to privacy is not absolute.

No serious commentator suggests that a privacy right is absolute.  There is no such suggestion in any of the Law reform Commission reports.

“Privacy is a right that must be appropriately balanced against other competing rights, including the right to freedom of expression and the public interest in being informed about matters of public concern,” the submission says. “The model proposed in the issues paper focuses on a cause of action actionable directly in the courts. The OAIC is concerned that such a model may pose access to justice issues for a significant portion of the population, thereby limiting the benefits to be obtained from the cause of action.”

Costs and delays and the stress of litigation has been a longstanding problem

The proposal to deal with privacy grievances initially through conciliation is at odds with the views of the Australian Privacy Foundation, plaintiff law firm Maurice Blackburn, the NSW Council for Civil Liberties and privacy lawyer Peter Timmins. They have all urged the government to press ahead with a privacy tort.

Submissions opposing a new tort include the Rule of Law Institute and News Limited, publisher of The Australian. The Law Council and the ABC have declined to express a view.

Transparency International’s executive director Michael Ahrens urged the government to consider the impact of the proposed tort upon the exposure of corruption.

“The critical role played by investigative reporters is well recognised,” he wrote.

“I submit the legitimate public interest in being informed of matters of corruption should not be impaired or rendered more costly, directly or indirectly, by the proposed cause of action.

“That could be a consequence,” Mr Ahrens wrote.

The question of balancing the rights will be fundamental.  That is best done through including robust defences.

In Lawsuits second-best option for privacy protection Chris Merritt says:

THE real significance of Timothy Pilgrim’s concern about a possible federal privacy tort is that his criticism has very little to do with freedom of communication. It is for this reason that the critique of the federal Privacy Commissioner cannot be dismissed as predictable pleading by the media.

The problem with Pilgrim’s approach is that he wishes to absorb any extension of privacy protections to the structure the Privacy Commissioner uses in resolving breaches of the Privacy Act and its regulation.  Unfortunately that is a deeply flawed and weak form of protection.

Yet Pilgrim’s argument does spell big trouble for those who are just itching to use a new civil action to silence the media with privacy injunctions.

No it doesn’t.  What it spells is a a different philosophy in privacy protection.  Claims that there is a cabal or just a group of wild eyed types wanting to reach for privacy injunctions against that hated media is a nonsense.  The law would apply across the field and injunctive relief is but one remedy being proposed.  It is important to add that injunctions in the Australian context are not easily obtained and not maintained without very good reason.

The Privacy Commissioner believes litigation is a second-best method when it comes to privacy.

Yes he does.  But the question is whether his preferred option is the better. Unfortunately the Privacy Commissioner’s approach to alternative dispute resolution is irresolute and too often given to unacceptable compromises which sometimes verge on placation.  The detachment associated with that approach makes for less weight being given to the victim of a privacy breach than it should.

And that sort of thinking has taken this debate to a crossroads. It will force the federal government to decide whether it is all about encouraging litigation to intimidate the media, or whether it is a sincere effort to find the best method of protecting privacy.

The debate is at no cross roads.  The issues have been long standing and the call for such a right has been made at regular intervals by law reform bodies since 1979 and agitated beforehand.  There are common law/part statute and part common law protections in most developed nations with a common law tradition and many civil law jurisdictions.  The question is whether there should be such a right enacted and, if so, what are the elements of the tort and what are the defences (or should the Privacy Commissioner’s model be preferred – a minority view so far).  A statutory right to privacy is not a lawyers feast in waiting.  It is a right.  To enforce it action may need to be taken.  That usually entails legal representation and must involve a quasi judicial or judicial forum.  That is the beginning and end of it.  There is no plan to intimidate the media.  Privacy protections overseas have not cowed the media.

It is now clear that those two goals are mutually exclusive. Pilgrim is hardly an apologist for the media. In fact, freedom of communication — the principle that underpins the media’s concern about a privacy tort — is a second-order issue for Pilgrim.

This is a false dichotomy.  The Privacy Commissioner, like any stakeholder, has a preferred position.  His option would place the Privacy Commissioner at the centre of any dispute resolution.  On the most generous assessment he feels that this is the best way of resolving issues.  On a less charitable view there is an element of empire building; any expansion of privacy protections should be covered by the Privacy Commissioner.  The Privacy Commissioner’s position has hardly been a secret.  The question is whether it should be the one adopted.  I think not.  If a person is to have a privacy right that person should have the autonomy to take action to protect his or her position.  If the legislature wishes to give the Privacy Commissioner a role then, like the ACCC or ASIC in the Trade Practices and Corporations area, he may have some standing.  But that should not be done to the exclusion of another person’s rights.

His joint submission to the government with Information Commissioner John McMillan makes it clear that while freedom of communication is important, privacy protection is the main game.

And it is for this reason that they believe the plan outlined in the government’s issues paper needs to change. Litigation, in their view, is no magic bullet when it comes to protecting the privacy of the community.

Litigation should always be the last option not the first option.  But that said a second best solution as proposed by the Privay Commissioner is no proper option.

The logic of their argument is undeniable. If Canberra’s policy goal was to create a method of protecting privacy that would be available only to those rich enough to finance a civil suit, then a new tort would be perfect.

Wrong.  This myth of privacy/defamation being the plaything of the rich and famous is just that.

But if the government is sincere in its desire to extend privacy protection beyond the ranks of the rich and famous, it has two options.

The first is almost too dangerous to contemplate. It would amount to an early Christmas present for the nation’s plaintiff lawyers by winding back the financial impediments and tort reforms that encourage people to bring only the most serious of civil disputes to court.

Opening the barriers for privacy litigants would necessitate a similar move for a far more numerous — and more worthy — class of plaintiffs.

Those who suffer personal injuries currently have restricted access to the civil justice system as a result of a national scheme of tort reform put in place a decade ago.

It would be completely unjust for Canberra to now give a rails run to court for privacy claimants while continuing to turn away many ordinary people who suffer real, permanent injuries — not hurt feelings.

Litigation arising out of privacy breaches must necessarily be a discrete and limited field.  The question of big payouts is just silly.  Courts in Australia are overwhelmingly cautious.  If caps are to be placed on awards then where is the notion of unfairness.  It does beg the question though about the efficacy of some of the tort reforms, which have led to injustice. As a matter of law the question of comparative awards is not binding or relevant.

The second option facing the government is to deal with privacy complaints initially through an administrative mechanism — the path favoured by Pilgrim and McMillan.

It is nowhere near as dramatic as waves of civil suits and would leave large numbers of plaintiff lawyers and commercial privacy consultants deprived of a new source of business.

But if the purpose of this exercise is to extend real protection to everyone, litigation is not the answer.

Administrative mediation has the obvious downsides of the Privacy Commissioner comparing and balancing interests, administratively.  The question of rights protections takes a back seat to a more bureaucratic approach.


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