Peter A Clarke

George Williams, academic and commentator,  fairly well summarised the lamentable situation of a privacy tort, or non tort, in Australia in Privacy: the fix should not be left to judges. As Williams alludes, the ALRC, the NWSLRC and the VLRC have all recommended a statutory right of action for interference with privacy, by anyone and not just media.  That the Government should see some benefit in referring back to the ALRC the tort of privacy for further examination makes no legal or policy sense.  The ALRC emphatically said it was a good idea and set out the elements of the action and the defences to it.  Nohting of susbstance has changed since the report of 2008 and the Government’s discussion paper on the subject in 2011.  It makes sense if one looks through the prism of politics.

The article covers the key issues and is a very useful summary on where things are at and why.  Williams believes development in this area will come out of the courts.  That is probably true, mainly because there is no alternative and the need to fill the gaps in protection is clear.  Such progress however is slow and, until in the hands of the appellate divisions and most imporantly the High Court it may be inconsistent.  Williams description of  Judge Hampel’s decision in Jane Doe v ABC as some form of recognition of a breach of privacy as being an actionable wrong is an exageration in an otherwise well written piece.  The Court of Appeal in Giller v Procopets did not endorse that decision but rather expanded the breach of confidence to allow for misuse of personal information.  It is likely the law will develop along the equitable breach of confidence path rather than as a stand alone tort.  Unless the legislature decides to take long overdue action.

The article provides:

The political debate surrounding the federal government’s media reforms has obscured its failure to act on another front. The government has spent years considering whether Australians should be able to sue for serious invasions of their privacy. This indecision is set to continue, with Communications Minister Stephen Conroy announcing last week that the issue will be referred to yet another inquiry.

Governments tend to hold inquiries for two main reasons. They either seek assistance with developing laws and policies to solve difficult problems, or they are looking to postpone consideration of an issue or even to remove it entirely from the political agenda.

The government’s decision to refer the right of privacy to an inquiry falls into the second category. Indeed, the reform is only on the government’s radar in the first place because it was recommended by an earlier inquiry.

The Australian Law Reform Commission has already spent more than two years examining privacy law. It found serious deficiencies and gaping holes, and proposed many changes.

Its 2700-page report, released in 2008, recommended Australians be able to seek compensation for serious invasions of their privacy. This tort of privacy might arise when someone is subject to surveillance in a public toilet, their medical records are posted online, or their financial details are sold to others.

The issue has also been examined by other reform bodies. The law commissions of NSW and Victoria have also recommended a tort of privacy. Faced with these considered, expert findings, the response of the federal government has been indecisive and unfortunate. Rather than accepting or rejecting the 2008 recommendation, it left the issue to sit for three years until it initiated another inquiry.

That process has also failed to galvanise the government into making a decision. This was made clear when Conroy announced his media reforms last week. In doing so, he said that the ”Privacy Tort will be referred to the Australian Law Reform Commission for detailed examination”.

This has left people scratching their heads. Five years after the law reform commission last answered the question, it will be given an opportunity to review its findings. By the time a decision is finally made, this idea will be one of the most over-examined law reform initiatives in Australian history.

The problem faced by the government is that a tort of privacy has been portrayed as an attack on the media, with one headline in The Australian reading ”Tort a hate-filled strike on liberal democracy”. The government has contributed to this perception by portraying the tort as a response to the British News of the World phone hacking scandal.

This has distorted the debate. Any attempt to justify a tort of privacy on this basis will rightly fail in the absence of similar wrongdoing in the Australia media.

The tort is instead justified on a different basis. Australians need protection because corporate interests routinely infringe our privacy, including by taking advantage of new technologies such as social media. The law should provide a remedy for, and a deterrent against, a person or business breaching our privacy for commercial gain, or acting negligently so as to expose our personal information and financial details to criminals.

If Parliament does not act in light of these concerns, it is likely that the courts will. The High Court opened the door to a judge-made tort of privacy in 2001. It stated that nothing in its decisions prevented Australian judges from developing the new legal right. Justice Ian Callinan further stated that ”the time is right for consideration whether a tort of invasion of privacy should be recognised in this country”.

Lower-court judges have taken the hint. For example, Victorian County Court Judge Felicity Hampel has held that a breach of privacy ”is an actionable wrong” that gives rise to a right to recover damages.

Such decisions demonstrate a key feature of Australia’s legal system. Where there is an obvious gap in the law, judges can develop new common-law rules in the absence of leadership and direction by Parliament.

Parliament should not leave this question to the courts. To do so would be a second-best solution. Our elected representatives are in a much better position to craft a tort of privacy that takes full account of competing interests. If left to the courts, there is a danger that the tort will pay inadequate regard to principles such as freedom of speech.

The federal government has missed several opportunities to introduce a tort of privacy. It might have done this in a way that establishes beyond doubt that the tort is not directed at the media, such as by including strong protections for freedom of the press. In the absence of a decision, yet another inquiry is unlikely to resolve the matter.