Kirby’s article on Privacy in the Griffith Journal of Law and Applegarth J’s speech on “Privacy and the Media” provide further valuable contributions on discussion on the role and future of privacy law in Australia

June 5, 2013 |

The Hon Micheal Kirby, former High Court Justice, in a recent article, Privacy: An Elusive and Changing Concept, in the Griffith Journal of Law and Human Dignity, and the Hon Justice Peter Applegarth, in a speech in May 2012, Privacy and the media, have provided valuable contributions to a discussion of privacy as a legal construct and its future development, if any, in Australian jurisprudence.

The Kirby article provides a very comprehensive historical background and the influence of overseas developments in the area.  It provides, absent citations:

Notions of privacy are bound up in ideas of human uniqueness and the importance of solitude. Privacy engages the individual human mind and reflections on the significance of one’s existence in relation to others, to one’s community and the surrounding world. In that sense, the idea of individual privacy can probably be traced back to ancient times and to early and Biblical reflections upon the human relationship with God and with the world.

Precise notions of what are private tend to vary from one culture to another. The English are a famously private people. Their culture is generally one of reserve and understatement. We all know the common jest that an Englishman’s idea of paradise is an empty railway carriage. There he can be left alone. Yet such cultural norms probably exist also in Australia. I confess to always being happy when the seat beside me in a plane is left empty.  And I am referring to First Class.

 Writings about privacy in the law began long before the era of the modern media. In the English law, and in its derivatives in the United States of America, Canada and Australia, the right to be left alone was usually dealt with under the remedies provided for other purposes, such as tort of nuisance or the civil remedy afforded for breach of confidence1.  In the United States, constitutional notions of privacy took aong time to develop.   In Griswold v Connecticut, Justice Hugo Black described privacy as a “… broad, abstract and ambiguous concept”. This imprecision has meant that, in the law of English-speaking peoples, privacy commonly refers to a variety of notions, only loosely linked together. Accordingly, for lawyers, it has been an enduring source of controversy, including as to the extent that the national constitution and law provide it protection. This feature of the legal concept of privacy has led commentators to conclude that the legal protection of privacy tends to reflect particular intellectual trends within the liberal political tradition. The meaning and scope of privacy will “always be in flux”

The purpose of my contribution is not to explore at length the history, philosophical underpinnings and conceptual framework of the notion of privacy. Instead, it is to look at the practical developments that have occurred in the Australian, and related, legal systems, so as to provide a few staging posts by which we might understand where we have come from, in relation to privacy and publication. Where we have arrived at. And where we might be going. To do this, I intend to trace my own journey in considering the notion of privacy and, ultimately, explore how that value might be better protected in our society. Of course, there are many other ways in which the issue might be addressed. But this is the way I have chosen.  I hope that it will be helpful for our Conversazione and for those who later come to read about the issues we have gathered to explore at this time.

 As chance would have it, our meeting is convened on the brink of the publication in England of the Leveson Report, authored by Lord Justice Leveson of the English Court of Appeal. That report grew out of shocking revelations in England concerning flagrant and deliberate intrusions into individual privacy, by print and electronic media, led by tabloid newspapers published by the News Group. That masthead originally traced its origins to the Murdoch stable of newspapers, in Adelaide, Australia. I am sure that our deliberations would have been even more fruitful if we enjoyed the benefit of considering the recommendations of the Leveson inquiry.

 

AN AUSTRALIAN REJECTION (1937)

 Whilst scholars and courts in the United States of America were struggling to give content to the legal concept of privacy in the early decades of the 20th Century, the placid waters of Australian law rarely ventured upon such challenges. When I was a boy in the 1940s, I would sometimes visit my grandfather, William Knowles. He was a journalist in the Fairfax interests. He derived from Northern Ireland. In accordance with the common values of his ethnicity he, was an extremely private person.

My grandfather’s home was in South Dowling Street, now a main expressway feeding the Sydney Airport. A large concrete barrier (designed to minimise noise) now separates my grandfather’s old home from the busy road in front of it. But in those days, opposite the home and visible, was a high paling fence. It boarded a horse racing facility which I now know was Victoria Park, named like so many other places after the late Queen Empress. Accidentally, that park, now replaced by high- rise apartments, factories and other developments, entered the law books in a leading case on privacy protection.

 The case was Victoria Park Racing and Recreation Grounds Co Ltd v Taylor5. A reporter, operating beyond the paling fence and outside the racing ground, began reporting on the races taking place within the grounds. The racing facility was up-in- arms. It sued for an injunction and for damages. Its cause of action framed in nuisance was rejected. But then its counsel argued an alternative case. They argued that a new legal right to privacy should be expressed by the High Court of Australia. However, at that time, that court was subject to appeal to the Judicial Committee of the Privy Council. English law had not then developed a tort of invasion of privacy. So far as Chief Justice Latham was concerned, that was the end of it. Australian law could not recognise such a right. In the course of his reasons he said:

 “The claim under the law of nuisance has also been supported by an argument that the law  recognises  a  right  to  privacy  which  has  been  infringed  by  the  defendant.

 However desirable some limitation upon invasion of privacy might be, no authority was cited which shows that any general right of privacy exists.”

 Justices Rich and Evatt dissented from this opinion, believing that there was no obstacle in the path of the High Court of Australia fashioning a remedy for the kind of invasion of the race course’s privacy that had occurred. Evatt, in particular, was familiar with the growing United States discussion of this notion. However, the dissentients did not prevail. The Taylor case has been taken to be one of those wrong turnings that sometimes occurs in the law when timorous judicial souls prevail over judicial bold spirits. For decades, the decision in the Taylor case was seen as an insurmountable barrier against any advancement in the common law for the protection of privacy in Australia. Any such advancement would have to come not from the courts, but from the legislature. And the legislatures of Australia were very slow to move. In part, this was because of the complexity of the problem. In part, it may have had something to do with the power of media interests which strongly opposed a provision of remedies for privacy invasion. Legislators and the media have long enjoyed a symbiotic relationship in Australia. Each needs the other for the other’s purposes. In the result, each tends to feed, and rely upon, the other. Defying the media, or acting contrary to its interests, is a rare event in Australia.

 It may be a trick of the memory, but I seem to remember my grandfather telling me about the journalists intruding into the privacy of the racing ground opposite his home. As a journalist himself, he would doubtless have celebrated the wisdom of the High Court’s rejection of any remedy of privacy intrusion on this kind. Journalists tend to see only the merits of free expression. Their sympathy for competing values is ordinarily very muted.

 

UNIVERSAL HUMAN RIGHTS (1948-66)

My next encounter with privacy happened when I was in primary school. In 1948, the selfsame Dr H.V. Evatt, who, as a Justice, had dissented in the Taylor case was by then President of the General Assembly of the new United Nations Organisation.That body was created in 1945 to provide a new world order out of the ashes that followed the Second World War. Dr Evatt had played a significant part in its foundation. Its Charter rested, essentially on three principles: the provision of peace and security in the world; the attainment of greater economic equity; and the protection on universal human rights.

 The last mentioned objective of human rights was placed in the hands of a consultative body chaired by Eleanor Roosevelt, widow of the war-time president of the United States. In 1948, that committee delivered its draft for the Universal Declaration of Human Rights (UDHR)7. That Declaration was adopted by the General Assembly, with Australia’s Dr Evatt in the chair. Early in 1949, my teacher, Mr Redman (we did not know their first names in those days) provided us all with copy of the UDHR. It was printed on airmail paper, a rarity in those days. It carried the as yet unfamiliar logo of the United Nations, printed in blue. Our teacher taught us the reason behind seeking to express universal human rights. This was because of the shocking depravations of fundamental rights that had occurred before and during, and had led to, the recent War. Unless human rights were universally respected, there was a fear that the new atomic weapons would be used to destroy humanity.

 In Article 19 of the UDHR, it was provided:

 “Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference, to seek, receive and impart information and ideas through any media and regardless of frontiers.”

 However, Article 12 provided:

 “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.

By Article 29.2 of the UDHR, it was provided:

 “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society.”

 These expressions were clarified, enlarged and potentially made justicable in the International Covenant on Civil and Political Rights (ICCPR)8. In that treaty, the right of protection of individual privacy was stated in Article 17.  It reads:

 “No-one shall be subjected to arbitory or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 In Article 19 of the ICCPR, there was also a provision upholding freedom of expression. However, this too mentioned the need to respect the rights and reputation of others:

“1.  Everyone will have the right to hold opinions without interference.

  1. Everyone shall have the right of freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or though any other media of his choice.
  2. The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)    For respect of the rights or reputations of others.

(b)       For the protection of national security or of public order (ordre public) or of public health or morals.

Back in 1949, Australian school children were taught about these fundamental concepts. However, as time as passed, the instruction has tended to fall away. The absence in most parts of Australia of any general charter or statute for fundamental rights has discouraged the teaching of such notions of citizenship. Most especially, it has meant that succeeding Australian generations have grown up without a clear guidance that exists in other societies (such as the United States) of the need to recognise the important rights associated with freedom of expression and the important rights associated with (relevantly) the protection of “privacy, family, home or correspondence”.

Although Australia in the 1960s took and important part in the negotiations of the terms of the ICCPR and later in the 1980s signed the first optional protocol to the ICCPR (giving Australians the entitlement to complain of derogations to the United Nations Human Rights Committee in New York), no “protection of the law” against (relevantly) interference in privacy has, in the context of media intrusions, been enacted. There has been legislation to provide for defamation. However, that concerns the somewhat different values reflected in the provisions of Article 17 of the ICCPR relating to “unlawful attacks on… honour and reputation”. For the separate concern of subjecting persons to unlawful interference of their “privacy, family, home or correspondence”, no specific laws have been enacted. It remains, legally speaking, terra nullius.

OECD EXPERT GROUP AND PRIVACY REFORMS (1978-80)

 By 1975, I had been appointed by a great reforming Attorney-General, Lionel Murphy QC, to be the Inaugural Chairman of the Australian Law Reform Commission (ALRC). After the Whitlam Government was dismissed, another reforming Attorney- General took office, Bob Ellicott QC. In its election commitment in December 1975, the Fraser Government undertook to refer to the Law Reform Commission an investigation  of  protection  of  privacy in  the  law of  Australia.   This  was  entirely consonant with the values of individual freedom and dignity espoused by that government. The Commission embarked upon its investigation. In the midst of its inquiry, the Organisation for Economic Co-operation and Development (OECD), in Paris, established an expert group to develop guidelines on a particular aspect of privacy, namely transborder data flows. Because of the Commission’s privacy enquiry, I was sent to the OECD as Australia’s representative. I was then elected to chair the expert group. In 1980 it developed the privacy guidelines. These have proved enormously influential throughout the world.  They became the basis of the federal Privacy Act 1988 (Cth)9.

 Coinciding with these developments, in 1979 the ALRC published a report on the issues of defamation law reform and the protection of privacy in the context of publication10. That report had, as a major objective, rationalisation and unification of the Australian law of defamation.Until that time, in Australia, the defence of justification varied as between the several sub-national jurisdictions. In some jurisdictions (such as New South Wales) to justify publication, the publisher had to establish that it was both true and for the public benefit/interest that the matter complained of should be published. In other parts of Australia (such as Victoria) truth alone was the defence of justification.

 The “public benefit/interest” element came to be included in local statutes in colonial times in part because of the stigma attached to former convicts and children or grandchildren of convicts. Whilst it was true to say this of those persons, it was felt that it was not necessarily in the public interest, or to the public benefit, and hence the additional element should be required. This additional element provided some protection for privacy in the context of media publications in particular. If, as the ALRC proposed, the nation moved to a uniformed defence of truth alone, this would set back the cause of privacy protection. Hence, the Commission suggested a new concept of unfair publication. To achieve protection of this concept, a new notion of privacy invasion was recommended. It would provide a remedy where:

“A person publishes sensitive private facts concerning an individual where the person publishes matter relating or purporting to relate to the health, private behaviour, home life or personal or family relationships of the individual in circumstances in which the publication is likely to cause distress, annoyance or embarrassment to an individual in [that] position”11.

 Various defences were proposed for such a cause of action. These included consent; triviality; accident; legal authority; privileged or protected dissemination; fair, accurate and contemporaneous reports; reasonable self-protection; or proof of the public interest. A right of action for appropriation of the name, identity or likeness of an individual was also proposed. However, the powerful interests of the media, whilst naturally supporting the ALRC’s acceptance of the defence of justification in terms of truth, resolutely opposed the concurrent proposal for remedies for breach of privacy.      In   the   end,   this   media   opposition   succeeded   in  defeating  the parliamentary adoption of the ALRC recommendations. Important protections were secured for individual privacy in the context of information flows. However, those protections did not extend to media invasions of privacy. When, later, a uniform defamation law was adopted in the sub-national jurisdictions of Australia, it did not contain provisions for privacy protection13. Any such claim to privacy protection in that context had to run the gauntlet of the decision of the High Court in Taylor.

DECISIONS OF THE COURTS (1984-2009)

 When I left the Australian Law Reform Commission and returned to the courts, my duties occasionally saw me participating in cases that concerned prospects of what might be envisaged as invasions of privacy. Sometimes the questions were dealt with under the umbrella of the cause of action in defamation14. Sometimes there were dealt with in the tort of breach of confidence15.  Occasionally, a claim was made seeking remedies for invasion of privacy as such. In one such case, the complaint related to the installation of cameras in a meat processing establishment concerned with the slaughter of native Australian animals16. In the end, no  remedy  was afforded in that case for breach of privacy, although several of the High Court justices (including myself) indicated that their minds were open to revisit the decision in Taylor and to consider the development of a common law principle for invasion of privacy by media. It was my view that Lena Game Meats was not a suitable case in which to explore that notion. This was because the claimant there was a corporation and the universal principles of human rights upholding privacy were, by their terms, addressed to individual privacy, for the protection of human subjects. This was different from the concept of corporate privacy, for the protection of inanimate legal persons with no body to feel or soul to be damned.

 In Lena I endeavoured to indicate reasons why, in fashioning any future remedy for privacy protection in the context of publication, considerable care had to be observed. Sometimes, facts can be embarrassing. But on the other hand, the publication of facts can often reveal the world as it is, not as surrounding society might prefer it to be. Whereas Justice Callinan in Lena had mentioned with apparent praise the restraint exercised by the media in the United States (and other countries) in publicising the physical impairments of President F.D. Roosevelt that kept him, for the most part, in a wheel chair after he had suffered poliomyelitis in the 1920’s, it is at least arguable that revelation of the truth might have been in a higher public interest:

 “With hindsight, it is arguable that such restraint was misconceived. The ability and character of the President overcame his physical restrictions. Had they been reported and discussed in the media, this might well have contributed to more informed attitudes to physical impairment generally.”19 At least this would have been a legitimate subject to be weighed in the balancing exercise required by the application  for  the  provision  of  injunctive  relief  and  mandated,  in  such  a  case,  by  the considerations implied from a constitution such as ours.

 The net result of these encounters with the cases was, by that, my public legal career finished without having an opportunity finally to contribute to a modern and effective remedy for serious invasions of privacy. But was such a remedy really necessary in Australia?

RECENT AUSTRAILAN RECOMMENDATIONS (2008)

A number of proposals for the creation of a tort of privacy were advanced in Australia early in the present century. Reports of the ALRC, joined by recommendations of the NSW and Victorian Law Reform Commissions, recommended the creation of a statutory right to privacy21. The proposal rested upon established instances, up to that time, and the perceived need to strengthen the rights of individuals against the powerful and largely self regulated decisions of media outlets.

It was at this time that a number of developments started to occur that have now come together in the situation in which we find ourselves. Those developments include him on decisions of the courts in England, addressing what were seen as unacceptable reporting of private facts and which were held to give rise to remedies that were specifically expressed in terms of protection of personal privacy. These decisions have included:

?   Douglas v Hello;

?   A v B Plc;

?   Naomi Campbell v MGN Ltd; and

?   Mosley v News Group Newspapers.

The Mosley case is a good illustration. Mr Max Mosley was president of the International Motor-Racing Federation. A video film was taken, by a camera concealed in the jacket of a woman known only as “E”, concerning activities with the News Group in its tabloid papers called a “Sadomasochistic Nazi Orgy”. Mr Mosley described the event as nothing more than a private party. The now defunct News of the World, then published by News Group, presented the story in a sensational way. However, “E”, who was to have been their star witness, failed to attend court to give evidence. The public interest defence pleaded by the publisher relied on the suggested theme of a Nazi concentration camp. In consequence of the absence of the star witness, Mr Mosley succeeded. He was awarded £60,000 damages. The trial judge’s “long and dispassionate judgment” attracted strong press criticism for what was described as “as his moral relativism” or worse. However, no appeal was brought against it. And as the world knows, News of the World was later closed by decision the principal of the News Group, Mr Rupert Murdoch.

The events surrounding that closure were instructive for the attitude that had been exhibited in England by News Group and reflected in media houses forced to compete with its salacious approach to the private lives of celebrities. The final straw was presented when New Group’s publications (to put it at its lowest) took advantage of illegal telephone hacking of the mobile phone of a murder victim, Milly Dowler. At the same time, it was revealed that a cohort of reportedly 4,000 victims had suffered serious and sometimes harrowing invasions of their privacy and intrusions into their private conversations and relationships. It was the revelation of these activities that led to demands for redress, both in England and Australia.

 Some of the journalists in the employ of News Group were unrepentant. A former deputy editor of News of the World, Paul McMullan, expressed his views thus:

 Privacy is for pedos”

 McMullan said he little sympathy for celebrities such as Hugh Grant,  who have complained about media intrusion. ‘Privacy is the space bad people need to do bad things in. Privacy is evil. Privacy is for pedos. Fundamentally, nobody else needs it’, said McMullan, who was one of the several journalists giving evidence in London today. McMullen said reporters at the paper routinely hacked people’s voicemails and did so for their editors and because it was in the public interest”

 Such was the outcry that arose in the British Parliament at the revelation of this arrogant abuse by media of its power to invade the privacy of individuals that a number of things happened. A Parliamentary Committee of Inquiry was established by the British Parliament before which, famously, Rupert Murdoch, his son and senior officers attended to eat humble pie. “Never”, declared Mr Rupert Murdoch, had he felt so “humble”. It was clear that he could smell the newly resolute decision of members of Parliament in all parts of the House, to cast aside their fear of the media and to resolve that strong action was necessary. For example, the British Deputy Prime Minister, Mr Nick Clegg, reportedly warned both the media and his Conservative Party Coalition partner in the United Kingdom, not to pre-empt or reject the recommendations of the Leveson inquiry. He has indicated that he would work with the British Labour Party to implement the Leveson recommendations, so long as they were “proportionate”.

 The Leveson Inquiry itself undertook an unprecedented investigation into a large number of complaints that together (and looked at as a whole) illustrate a supreme arrogance on the part of a power in the land that felt it was beyond legal or political control. Mr Clegg declared that the test for the British Government’s response to the Leveson proposals would be:

 “Can we look Milly Dowler’s mother and father in the eye, whose privacy was so outrageously abused at a moment of extraordinary grief?”

 In Australia, the events occurring in England were followed by local action. In December 2011, the Federal Government constituted an Independent Inquiry into the Media and Media Regulation. This inquiry was chaired by the Hon. Ray Finkelstein QC, a former Federal Court judge, assisted by Professor Matthew Ricketson. Although not specifically concerned with privacy, the inquiry addressed particular problems in Australia of regulating media in differential ways. Electronic media has been thought to lie within federal constitutional power over telecommunications. There, significant regulations exist and the abuse of power has been confined. On the other hand, print media, thought to be largely beyond regulation by the Federal Parliament, has been substantially a law free zone, so far as protection of privacy was concerned. At least it was so if no other head of peripheral remedy could be discovered, such as an action for defamation or breach of confidence. A number of instances of irresponsible reporting of private matters in Australia were noted by the Finkelstein report when it was later delivered in February 2013.

 “ * A minister of the Crown has his homosexuality exposed. He is forced to resign. *      A chief commissioner of police is the victim of false accusations about his job performance fed to the news media by a ministerial adviser. Following publication of the articles, he is forced to resign.*     A woman is wrongly implicated in the deaths of her two young children in a house fire.  Her grief over her children’s deaths is compounded by the news media.*      Nude photographs, said to be of a female politician contesting a seat in a State election, are published with no checking of their veracity.  The photographs are fakes.

*     A teenage girl is victimised because of her having had sexual relations with a well known sportsman.”

 In addition, instances were cited of other examples of serious privacy invasions and undue harassment by journalists:

 “Exhibit A is the Madeline Pulver collar-bomb case, with the television media camping outside her house for four days, and pictures published of her walking the dog, despite the fact that she was child, a victim and that her father had pleaded for her privacy to be respected.”  “The news media”, Finkelstein says, “does a great deal of good work. Journalists and editors pursue their jobs with dedication and skill. Yet in all these cases, the medial failed its own frequently proclaimed standards. People were damaged, sometimes profoundly, and in most cases had no meaningful recourse”.

 In addition to the Finkelstein inquiry, and stimulated by the newfound interest in privacy protection deriving from the wide reportage of the instances of abuse in Britain, an issues paper was published on behalf of the Australian Government, reviving the ALRC proposals for a remedy in the form of a new federal statutory remedy for invasions of privacy. Although the issues paper on this proposal was announced by the Federal Minister for Privacy and Freedom for Information (the Hon. Brendan O’Connor), and came down in favour of the introduction of a right of privacy in Australia, the actual initiator of the issues paper, on behalf of the Federal Government, was the Department of Prime Minister and Cabinet33. The paper recommended that a new federal statutory cause of action for the protection of privacy could and should be framed.  It proposed that, to establish such a right of action, the claimant might be obliged to prove that:

?   There is a reasonable expectation of privacy in the circumstances;

?   The act or conduct complained of was highly offensive to a reasonable person of ordinary sensibilities; and

?   The public interest in maintaining the claimant’s privacy outweighed other matters of public interest34.

The issues paper  contemplated a number of defences to the proposed federal privacy action. These included:

?   That the act or conduct was incidental to the exercise of a lawful right of defence of the person or of property;

?   That the act or conduct was required or authorised by or under the law; or

?   That the publication of the information was, under the law of defamation, privileged.

 The issues paper also recommended a list of remedies, including an award of damages; an account for profits; the provision of injunctions; the publication of a correction order; and the making of a declaration. These and other issues are raised by the federal paper. Following the issues paper, a Bill for the better protection of privacy in Australia was introduced into the Federal Parliament. However, this Bill dealt with other subjects of privacy (such a credit reporting) but not privacy in the context of media publication. Whilst the media waited in nervous anticipation of the recommendations of the Leveson Inquiry in Britain and the Government’s response to the issues paper in Australia, newspapers, particularly those belonging to News Limited, conducted a strident, one-sided and unrelenting continuation of its campaign against any legal protection for privacy in the context of Australia’s media publications, including most relevantly its own.

 

WHAT IS TO BE DONE?

 We have thus reached a Rubicon in our consideration of privacy protection in Australia. The die is cast. Of course, our Federal Government and Parliament might decide to do nothing. They might decide to leave the present absence of effective legal protection for privacy in Australia, in the context of publication, unchanged. They might conclude that the community value of privacy should be included in an honour code for journalists and otherwise left to self-regulation. They might try to expand and strengthen the Australian Press Council, which has not always been particularly effective in dealing with instances of media abuse. Or they might provide for some low level administrative remedies, as by the Commonwealth Privacy Commissioner, appointed under the Privacy Act 1988. They might leave it to the courts in the future to develop the tort of breach of confidence. They might leave it to the courts to pick up the hint given by Chief Justice Gleeson in the Lenah Game case38 that the common law could yet develop a tort of privacy in Australia in default of legislation. Already, there have been some instances of judicial developments in the States39. But generally the Australian courts, in the face of Taylor, have been unwilling to take any step towards privacy protection until the High Court does40.

CONCLUSIONS

After such a long journey it would not be surprising to conclude that, in Australia, nothing will be done. After all, there have been so many proposals in the past, by well-intentioned people. All have sunk without trace when they came into collision with the media iceberg. Should we be worried about such an outcome? I think we should. In a fine paper on “Privacy and the Media”, Justice Peter Applegarth of the Supreme Court of Queensland offered many instances where serious wrongs by way of invasion of privacy by the Australian media, have occurred without any remedy. One of them I feel is particularly telling:

 “Last week “A Current Affair” broadcast an ambush of Clive James [the notable Australian born author] in a Cambridge street [in England] by an ACA film crew. Mr James, a married man aged 72, was confronted by a woman who claimed to have had an 8 year affair with him.  He has been battling leukaemia in recent years, so the Nine Network’s interest in filming his unexpected reunion with an alleged ex-girlfriend was particularly touching. The fact that Mr James is suffering from leukaemia is probably beside the point. The same ethical and legal issues would arise if a fit old man was being ambushed by a film crew in pursuit of a tawdry “Kiss and Tell” story. Whether or not Mr James had the affair is beside the point. In defamation cases, truth is a defence. In privacy cases it is not. Individuals are entitled to be protected from the public disclosure of allegations about private matters, whether the allegations are true or false, or half true. There was no apparent legitimate public interest in publishing to the general public details of Mr James’ extra-marital affair. Mr James would probably have a cause an action under English law if the program was broadcast in that country, and disclosed sensitive private facts without a public interest justification. Whether he has a similar remedy under Australian law remains to be seen. This episode shows that the Australian media will continue to publish “Kiss and Tell” stories in the post Finkelstein era. Given the failure of self-regulation documented in the Finkelstein Report, and the absence of a statutory tort, Australian judges will have to pass judgment on the state of Australian law in protecting against the public disclosure of private facts. If Australian law is developed to create a tort for invasion of privacy in cases like Mr James and ACA, then many citizens will say to the Australian media: “You asked for it””.

Preferable by far, as it seems to me, than the development of a common law tort by the courts, would be the creation of a statutory remedy by the Federal Parliament, after receiving and considering law reform reports and governmental consultations, such as the issues paper distributed in Canberra in 2011. Where serious wrongs are done to individuals, it is not usual, in our form of society, to leave judgment as to the remedies and redress for those harmed entirely in the hands of the alleged wrongdoer. Where great power is involved, it is usual in a society such as ours to submit the complaint against an alleged wrongdoer to requirements of independent accountability accordingly to pre-existing legal standards. Where very great power, able to influence and even paralyse parliamentary political power, is at stake, it is usual in our type of legal system to give access to the one branch of power in the polity that his unlikely to be frightened and willing to make independent decisions that reflect the competing social interests that are at stake. These are the competing principles explained in the UDHR and the ICCPR. Moreover, the ICCPR (which Australia has ratified) commits this country to providing protection of the law to those who suffer unjustifiable infringements upon their privacy, family, home or correspondence. So far, in the context of media publications, no such protection of the law has been afforded to Australians. In England, the pathway to new protection has been provided precisely because that country is a party to the European Convention of Human Rights.  That Convention has been incorporated into domestic law.  In Australia, in part because of hostile pressure from media interests, the Rudd Government backed away from the recommendation of the Brennan inquiry and declined to proceed with proposals for legislation of a federal Charter of Rights and Responsibilities.

Of course, there are risks in anything that is done. Particularly is this so in relation to media interests that have an inescapable role in upholding freedom of the press and free expression in Australia. Those interests themselves have only limited protection under the Australian Constitution. Nevertheless, the need for something better in the protection of privacy than the current lack of legal remedies in Australia does seem now to be overwhelmingly established. Moreover, to the many considerations that I have mentioned must now be added the advent of the internet, of social media and of electronic publications. These sometimes appear to assume that they can also operate in a law free zone. Lord McAlpine in England discovered this when he was recently falsely identified on the internet as a paedophile, as a result of identification error. I too have discovered this to my disadvantage. When, in 2002, a senator in the Australian Federal Parliament attacked me and invaded my privacy with allegations about my private life that were quickly shown to be false, I had few, if any, legal remedies. Despite the total withdrawal of the allegations and the provision of an apology (which I accepted) the contentions remain out there in cyberspace. They continue to circulate, with all their salacious falsehood.

People who serve in public life, including in Australia, have to develop thick skins. But, they too can still be hurt and wrongly damaged, even by retracted falsehoods. Moreover, if you choose to Google the name of my partner of 43 years, Johan van Vloten, the enquiry will revive the association of his name with the false allegations of the senator against me. This prudent, blameless, private good citizen is reduced in dignity in cyberspace.   He too has no remedy. Why do human beings generally think it important to protect privacy? Why are some private facts deserving of such protection? The answer to these questions is that, even in the age of the internet, each one of us has a private zone in which we want to feel free to express our loves, our feelings, our dreams, our fantasies and our most intimate thoughts. It is by revealing those feelings to a very few chosen others that we reach fulfilment as individuals and richness in our existence as human beings. When such private facts are taken over by others and revealed to all and sundry without full and proper justification, we are all diminished. The onlooker, although titillated by the salacious, is reduced to an eavesdropper. The subject is diminished by humiliation, stigma or worse.

 Privacy is important to our fulfilment as human beings. At the moment, in Australia, there are serious black holes in the protection that our law provides for privacy. A consideration of the journey that our law has taken over the past 70 years suggests that the time has come to provide measured protections. That, in my view, is what has been proposed in the Federal Government’s issues paper, now under consideration. In privacy matters, the profits are too great to trust the media entirely to self regulation. Something more is needed. But will that something eventuate in our country in the face of the media’s strident opposition?  It is the moment of truth.

Kirby praised and referred to Justice Applegarth’s speech “Privacy and the Media”.  It, absent citations, provides:

 The phone hacking scandal that has engulfed the Murdoch Empire in Britain has added a new dimension to the debate about the right to privacy. We see on the news images of celebrities emerging with their lawyers from the Royal Courts of Justice in London following the reading of an apology in open Court by a Murdoch lawyer and after being paid some compensation for their legal claim. All great theatre. But what legal claim have they just settled? And who created the legal rights that they pursued to the doors of the Court? The answer to the second question is judges, dare I say it, activist judges, doing what judges have done in our thousand year legal tradition of judge-made law.

The answer to the first question is more problematic. Most folk would say that the right that was invoked, and which has been vindicated in legal proceedings, is the “right to privacy”. But what do we mean when we speak of the right to privacy? Does Australian law recognize it? If not, should it, and, if so, should it be created by Australian judges or only by democratically elected Parliamentary representatives? These are the questions that I will discuss tonight.

 In 1980, when I was a law student, I read a provocative article in the Law Quarterly Review titled “The Poverty of „Privacy”. In it Raymond Wacks concluded:

 “Privacy has grown into a large and unwieldy concept. Synonymous with autonomy, it has colonised traditional liberties, become entangled with confidentiality, secrecy, defamation, property, and the storage of information. It would be unreasonable to expect a notion so complex as „privacy? not to spill into regions with which it is closely related, but this process has resulted in the dilution of privacy itself, diminishing the prospect of its own protection as well as the protection of the related interests.”

 In this attenuated, confused and overworked condition, „privacy? seems beyond redemption. Any attempt to restore it to what it quintessentially is – an interest of the personality – seems doomed to fail for it comes too late.   „Privacy? has become as nebulous a concept as ‘happiness’ or ‘security’. Except as a general abstraction of an underlying value, it should not be used as a means to describe a legal right or cause of action.

 It is submitted that a more honest, effective and rational course is to approach the subject from the standpoint of the protection of „personal information.” As overworked as the concept of “privacy” was in 1980 and still is today, it wields a huge influence. It has been recognised as a human right. For instance, article 17 of the International Covenant on Civil and Political Rights provides:

“1.       No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.         Everyone has the right to the protection of the law against such interference or attacks.”

 The United Nations Human Rights Committee has stated that privacy includes a “sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone”. But in what form should our legal system confer a legal right or cause of action for what can loosely be called an invasion of privacy? In 2001 the High Court, in the Lenah Game Meats case, cleared the path for a tort of invasion to privacy to emerge. But Chief Justice Gleeson warned that “the lack of precision of the concept of privacy” was a reason for caution in declaring a new tort. Caution also was required because privacy interests could be protected by the development of recognised causes of action like breach of confidence.

 There is a need for caution because simply harnessing a concept such as “privacy” in declaring a new tort is a recipe for analytic confusion and uncertainty in the law. Philosophers can debate whether “privacy” is a value and whether it can be equated with personal autonomy. Lawmakers, including judicial lawmakers in writing the 21st Century chapter of the common law and in moulding equitable doctrines and remedies, should proceed cautiously by recognising certain specific “privacy interests” that deserve protection and defining the extent of their protection, rather than giving legal protection to an amorphous “right to privacy”.

 The US experience in tort law is instructive. Building upon Professor Prosser’s work the “Restatement on Torts” says that the right to privacy may be invaded in four ways. The first is “Intrusion upon Seclusion”. The second is “Appropriation of Name or Likeness”. The third is “Publicity given to Private Life” and the fourth is identified as “Publicity Placing Person in False Light”. This analysis demonstrates how amorphous the concept of privacy is. Many of us regard cases on appropriation of name or likeness as having more to do with the right to publicity than the right to privacy. If anything, it is about a right of property, and preventing unjust enrichment by the misuse of someone else’s goodwill, or a commodity called celebrity. The development of a tort of privacy in Australia, by either a statutory cause of action or a judge-made tort is likely to focus upon two of these categories: the first is intrusion upon seclusion or solitude. The second is public disclosure of private facts.

 Senior Judge Skoien recognised the existence of a tort based upon intrusion upon privacy or seclusion in the 2003 case of Grosse v Purvis. The tort requires a willed act which intrudes upon privacy and seclusion in a manner which is “highly offensive to a reasonable person of ordinary sensibilities” and which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress, or which prevents or hinders the plaintiff from doing an act which he or she is lawfully entitled to do. Tonight I wish to address a different emerging tort which is concerned with the public disclosure of private facts.  The need for protection is all too apparent.  The public’s thirst for gossip and scandal is insatiable, but it has always been so. In 1891 Oscar Wilde in The Soul of Man under Socialism observed:

 ”The public have an insatiable curiosity to know everything, except what is worth knowing. Journalism, conscious of this, and having tradesman-like habits, supplies their demands.”

 What is different today, and what makes the need for protection more pressing, is modern technology. Not just the telephoto lens which can capture images from a distance without committing a trespass. Modern mobile phones make everyone who owns one an amateur photographer, and easy access to the internet makes each of these amateur photographers a potential global publisher. They have a potential readership beyond the imagination of William Randolph Hearst or Lord Beaverbrook. An example of the potential of modern technology to invade privacy occurred a few years ago when a football superstar, Sonny Bill Williams, was captured on a mobile phone image during a consensual encounter with an equally fit sportswoman in a men’s toilet cubicle at a Sydney hotel. The photos found their way onto the internet, and then into the pages of the Murdoch press.

 How should the law restrict the public disclosure of sensitive private facts? English courts have done so without declaring a tort of privacy invasion. Instead, they have adapted the action for breach of confidence to provide a remedy where private information is disclosed in circumstances where a person disclosing information knew or ought to have known that there was a reasonable expectation that the information would be kept confidential or private. Some would say it is akin to a tort of privacy invasion except in name only. Still, the House of Lords in Wainwright declared that there was no tort of invasion of privacy. Professor Wacks in an essay titled “Why there will never be an English common law privacy tort” gives seven reasons for this conclusion, and the first is the advance of the equitable remedy for breach of confidence.

 Things have come a long way since Kaye v Robertson.  In that 1991 case, the actor, Gordon Kaye, was recovering from serious head injuries in a private room of a hospital from which most visitors were explicitly barred. He was in no condition to consent to a press interview. A reporter and photographer from the Sunday Sport shamefully invaded the hospital room. In that case the English Court of Appeal adopted the assumption of counsel that English law recognised no right of privacy. In the last decade English courts, influenced by the UK Human Rights Act 1998, have adapted the action for breach of confidence to protect privacy interests. We have actors Michael Douglas and Catherine Zeta Jones largely to thank for developing the law. The case arose out of their wedding at the Plaza Hotel in New York. In the same vein as Prime Minister Howard’s slogan in the 2001 election the actors declared:

 “We decide who will come to our wedding and the terms upon which they will come to it.”

 But an enterprising photographer captured some unauthorised shots and a magazine that bought them threatened to spoil the exclusive rights to publish authorised photos that had been sold by the actors to a rival magazine. Perhaps it is only millionaires like the happily married couple who can afford litigators to make new law. The celebrity couple succeeded in an action for breach of confidence, with English courts recognising the underlying value that the law protects is human autonomy – the right to control the dissemination of information about one’s private life.

 Sedley LJ declared:

 “What a concept of privacy does … is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”

 The course of adapting the law of confidence comes with its problems, and a member of the Queensland Bar, Mark Johnson, has published an article questioning whether the “square peg of privacy” should be forced into the “round hole of confidence”, or whether we should look to a new tort. If Australian courts look to a new tort, then they can look to formulations of a tort against disclosure of private information, as established by judges in New Zealand. But judicial lawmaking comes with its problems. It was a simple, but bold, move in 2007 for a Victorian County Court Judge to hold that a tort of invasion of privacy exists in Australian law.  The facts of the case were simple. ABC Radio broadcast the identity of a rape victim in breach of a statutory prohibition. It could not justify the publication of that sensitive, personal information.

 But finding a tort for breach of the plaintiff’s privacy was not necessary in order to fill a gap in the protection the law provided to the plaintiff. The judge already had held that the plaintiff should be awarded damages for breach of statutory duty, more controversially, for breach of a duty of care that the ABC was found to owe the plaintiff and also for breach of confidence. Judge Hampel did not explain why it was necessary in that case to declare a tort of privacy when other laws, including the law of breach of confidence, as developed by English courts in recent years, adequately protected the plaintiff’s privacy interests against the public disclosure of personal information. Her Honour did not consider it appropriate to define the elements of the new tort since, in the case in hand, the plaintiff had a reasonable expectation that the information would remain private and there was no competing public interest in it being published.

 Defining the elements of the new privacy tort has been left for future cases and, in the meantime, uncertainty will prevail. For instance, in Lenah Game Meats Gleeson CJ asked whether the disclosure would be “highly offensive to a reasonable person”. In the Naomi Campbell case some members of the House of Lords regarded that test as too strict. What test is a trial judge in Australia to choose from the judicial smorgasbord? There are big issues to be resolved about defining the cause of action for public disclosure of private facts, and when the privacy interest trumps other interests.

 Is it enough for a plaintiff to simply prove circumstances where there is a reasonable expectation of privacy? Should they have to prove also that publicity would be highly offensive to a reasonable person? How should the new privacy tort accommodate competing interests like freedom of communication? Should the plaintiff have to prove that the information is not of legitimate concern to the public? Or should it be for a defendant to prove some public interest justification? What are “private facts”? What are public and private places? What reasonable expectation of privacy does a public figure have? What defences should be available? Is it a defence, as in a breach of confidence action, that the information in the public domain? Does information on a public record cease to be “private”?

 Should there be a defence akin to a Lange defence where the matter involves the discussion of government or political matters? Without human rights instruments like a Human Rights Act as exists in the UK, how does the court balance competing interests? Do privacy interests have a priority over other interests such as freedom of speech? The answers to these questions cannot necessarily be found in cases from other countries, where legal analysis turns on “rights” to freedom of communication found in constitutions like the US Bill of Rights or in human right statutes like the UK’s Human Rights Act, 1988. In Australia, the only constitutional guarantee on freedom of a communication is a limited right to communicate about government and political matters, and only Victoria and the ACT have Human Rights Acts.

 The hazards of judicial law making in this area make us look to a statutory cause of action in the interests of greater certainty. But even with a more precise statutory cause of action, there will be uncertainty, and therefore the potential for plenty of litigation. Celebrities, sporting stars and other public figures will be left to guess whether the new tort of privacy will protect them from unwanted disclosure of personal information. In the UK, the sexual indiscretions of star footballers and other supposed “role models” are not necessarily protected by the law of confidence, partly because the other participants in the star’s sexual exploits are said to have a right to disclose information relating to the relationship. Can Australian sporting stars expect their one night stands in hotel rooms whilst on tour to be better protected by Australia’s new privacy tort?

 In the UK, supermodel Naomi Campbell, who falsely claimed that she had “never had a drug problem”, was able to recover damages against a newspaper that reported that she was attending meetings of Narcotics Anonymous and published photographs taken of her in the street as she left a meeting of NA.19 This was despite the fact that she conceded that it was legitimate for the media to set the record straight and report that she was attempting to deal with her drug problem. English law may not protect celebrities like Ms Campbell from being photographed when they pop down to the shop to buy a pint of milk, but it did protect her from the publication of photos of her leaving the Narcotics Anonymous meeting. This result was reached by a 3:2 majority of the House of Lords, which overruled a Court of Appeal bench of three that took the opposite view. So much for certainty.

 But potential uncertainty is not a sufficient reason to not enact a law to control the public disclosure of sensitive private facts. If uncertainty was a sufficient reason to do nothing, then Parliaments would not have enacted statutory causes of action for breach of vaguely worded statutory duties, and courts would not have developed the modern law of negligence. But we have to limit the scope for uncertainty, lest the law fall into disrepute and any cause of action become the exclusive plaything of the rich and famous. To be realistic, and if English experience is a guide, any new cause of action is likely to be used, and misused, by the rich and famous, more than the ordinary citizen. This is because the public’s thirst for gossip about, and unguarded images of, celebrities is enormous. Readers demand to see what film stars look like without their makeup, dressed in tracky dacks as they pop down to the shop to buy a pack of fags. Readers of New Idea like to look at images of aging supermodels emerging from the surf, and to see signs of cellulite. Perhaps it’s the search for the authenticity. Maybe, as Wilde said, it is insatiable curiosity to know everything, except what is worth knowing.

 Some of us would like to have the freedom to be protected from too much information about celebrity marriages and images of cellulite. But we can exercise that freedom by reading the Law Quarterly Review rather than New Idea. Celebrities and corporations like to control images and stories, lest it diminish the value of a commodity called celebrity. Under the guise of protecting the value of personal autonomy or “a right to privacy” in the form of the right to control disclosure of private information, the law inadvertently may create an image right or a right to publicity. The risk is very real, since in applying the traditional action for breach of confidence to information that was already in the public domain, Lord Hoffmann and the majority in Douglas v Hello (No 3) effectively created an image right, or a right to publicity.

 Oscar Wilde famously wrote:

 “We are all in the gutter, but some of us are looking at the stars.”21

 The English barrister, Christine Michalos, in discussing Image Rights and Privacy after Douglas v Hello cleverly observed:

 “…as the market shows, we may not all read the gutter press, but we all want to look at the stars.”

 This public demand prompts the media to photograph and film celebrities from a distance through telephoto lenses or from closer range. This raises interesting issues for the law. The first is whether taking photographs and doing so with a telephoto lens should be treated any differently to images captured by the naked eye. The second is the issue of expectations of privacy in public places.

 n 1765 Lord Chief Justice Camden stated:

 “the eye cannot by the laws of England be guilty of trespass.”

 Our common law adopted the general rule that what one can see one can photograph. That approach came to be questioned in the mid-1990’s when an English judge stated:

 “If someone with a telephoto lens were to take from a distance and with no authority a picture  of another engaged in some  private  act,  his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it.

 In such a case, the law would protect what might reasonably be called a right to privacy, although the name accorded to the cause of action would be breach of confidence.” That view was taken in the absence of legislative guidance in the form of a Human Rights Act, and simply through the development of the general law to suit modern circumstances. Modern jurisprudence in England following the enactment of the Human Rights Act in 1998 has further developed the action for breach of confidence, and treats photographs as more intrusive than verbal accounts of what was seen by the human eye.

 As for photographs taken in a public place, the English Court of Appeal treated as arguable that the child of Ms Murray (better known as J K Rowling) had a reasonable expectation of privacy being pushed along a street in a pram. But generally, individuals, including the rich and the famous, have no right to restrain a photograph being taken of them in public. This was the outcome in New Zealand in Hosking v Runting. And so it is, that models cannot complain when they are photographed down the shop looking unglamorous in their tracky dacks, and Sir Elton John could not complain when he was photographed taking rubbish out to the bin. With some exceptions, such as a homeless person who attempted to commit suicide in a public place, the fact that the claimant was in a public place, or could be seen from a public place, when they were photographed has been practically decisive against a claim for invasion of privacy.

 However on 7 February 2012, in Von Hannover v Germany (No 2) the European Court of Human Rights gave some support to the idea that there can be an expectation of privacy in a public place. Princess Caroline of Monaco complained about the publication in a magazine of photographs taken of her and her family on a skiing holiday. It stated:

 “There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.”

 Whilst courts in England, other parts of the common law world and other parts of Europe grapple with issues of expectations of privacy in different contexts, Australian law remains unsettled as to whether a tort of privacy should exist under the common law of Australia, or in the form of a statutory cause of action. In 2008 the Australian Law Reform Commission, after careful consideration of the issue, recommended that federal legislation should provide for a statutory cause of action for a serious invasion of privacy, and contain a non-exhaustive list of the types of invasion that fall within the cause of action. It’s recommendations met with a predictably hostile response from some sections of the media, which treat the idea of a legally enforceable right to privacy, as something akin to poison. The ALRC’s proposal met with a lukewarm response from the federal government, and sunk almost without trace. Three years later the phone hacking scandal that engulfed the News of the World and News International, led to police investigations, inquiries by Parliamentary committees and the Leverson Inquiry, which was established in July 2011.

 In September 2011 the federal government announced an Independent Inquiry into the Media and Media Regulation, by retired Federal Court Judge The Hon Ray Finkelstein QC, assisted by Professor Matthew Ricketson. The Finkelstein Inquiry was not specifically concerned with privacy, and its establishment was not prompted by any evidence that the Australian media has conducted phone hacking on the industrial scale practised in England. Still, both the ongoing Leverson Inquiry and the now completed Finkelstein Inquiry dealt with the same vexed issue of what form of regulation should exist for the media in its different forms. Both have been concerned about the need for a swift and efficient process for the resolution of complaints, given the expense and delay associated with litigation and concerns about the effectiveness of voluntary regulatory bodies, the Press Complaints Commission in the UK and the Australian Press Council.

 The Finkelstein Report was completed on 28 February and released soon after. It is a massive report, and I cannot do justice to it. In very short summary it proposes a government funded News Media Council, established by statute to set journalistic standards and review complaints. It envisages a very speedy conciliation process, and remedies that include an order to publish an apology, correction, retraction or right of reply. Some media reaction to the report treated the report as a monster which imperiled freedom of the press. Some “reporting” and commentary about the report would make one think the report was written by Frankenstein rather than Finkelstein. I commend to you the more thoughtful commentary of journalists like Richard Ackland and Margaret Simons, and Professor Mark Pearson.

 Tonight’s topic is big enough without my taking on the bigger topic of media regulation. Relevantly, Mr Finkelstein addressed market failure, concentration of ownership, community distrust of the media and its lack of accountability. He instanced as examples of irresponsible reporting:

   “A minister of the Crown has his homosexuality exposed. He is forced to resign.

   A chief commissioner of police is the victim of false accusations about his job performance fed to the news media by a ministerial adviser. Following publication of the articles, he is forced to resign.

   A woman is wrongly implicated in the deaths of her two young children in a house fire. Her grief over her children’s death is compounded by the news media.

   Nude photographs said to be of a female politician contesting a seat in a state election are published with no checking of their veracity. The photographs are fakes.

   A teenage girl is victimised because of her having had sexual relations with a well- known sportsman.”

 Margaret Simons makes the following observation about these cases, and the invasion of privacy of the privacy of a young victim of crime, Madeleine Pulver:

 And privacy? Exhibit A is the Madeleine Pulver collar-bomb case, with the television media camping outside her house for four days, and pictures published of her walking the dog, despite the fact that she was a child, a victim, and that her father had pleaded for her privacy to be respected. The news media, Finkelstein says, does a great deal of good work. Journalists and editors pursue their jobs with dedication and skill. Yet in all these cases, the media failed its own frequently proclaimed standards. People were damaged, sometimes profoundly, and in most cases had no meaningful recourse.”

 An interesting point about the Leverson and Finkelstein Inquiries is that the former,  and possibly the latter, may not have come about had the phone hacking scandal not erupted over egregious breaches of privacy. Phone hacking on an industrial scale only came to light because its extent was revealed in e-mails that were bound to be discovered in civil proceedings, being e- mails that led to the settlement of Gordon Taylor’s civil action.  And such a civil action was brought under judge-made law, which gave legal protection for what most folk would describe as the right to privacy. After having sunk almost with a trace in 2008, the ALRC Report on Privacy was salvaged by the federal government, which released an Issues Paper about the Commission’s proposal to introduce a statutory cause of action for serious invasion of privacy.

 Watch this space.

 Yesterday the final report of the Federal Government’s Convergence Review was released. It proposes a new statutory communications regulator to address ownership, Australian content and other issues, and a non-statutory body to regulate standards and deal with complaints against the media. The latter body would eventually absorb the Australian Press Council and ACMA. This report said Mr Finkelstein’s proposal to set up a publicly-funded statutory authority to oversee news and commentary would be a “position of last resort”. Instead it recommended an industry-led body to oversee journalistic standards for news and commentary across all platforms. As the Chair of the Convergence Review, Mr Boreham, said:

 “So we came to the fork: do you move print up into a statutory regime or do you move broadcasting down into industry-led regulation? We’ve opted for the latter.”

 If the recommendations of the Convergence Review are implemented, the new statutory regulator will not investigate and rule on complaints about journalistic conduct, such as invasions of privacy. There will be no power in the government, or even the new statutory regulator, to direct the industry-based regulator to conduct an investigation. As Mr Boreham said on ABC Radio National this morning, the Convergence Review recommends “leaving it to the industry to sort itself out”. Meanwhile, moves are underway for the Australian Press Council to be beefed up. The Chair of the Australian Press Council, Mr Julian Disney, who has driven recent improvements to that body, welcomed the Convergence Review’s recommendations for a new industry-based body to absorb the functions of the Press Council and ACMA in regulating journalistic standards and investigating complaints against the media. He noted the need for the new body to have adequate resources and independence from the media, which will largely fund any new body.

 We await with interest what new regulatory landscape for the media, both old media and new media, will evolve in the coming months and years. If the Convergence Review’s approach is adopted, rather than the Finkelstein recommendations, it will be a self-regulating body, an improved Press Council as it were, dealing with all forms of the media, not a statutory body, that will regulate media standards and deal with complaints about invasions of privacy. Many of us who have acted as lawyers in cases involving the media wonder whether any new regulatory body, be it statutory or industry-based, will be able to resolve other than the simplest of complaints in a matter of days. A recurrent theme in the criticism of the current regulatory system is its slowness. The system of regulation has a role to play in resolving complaints about invasions of privacy. For example, the Australian Communications and Media Authority ruled against the Seven Network when it filmed former NSW Minister, David Campbell, leaving a sex- on-the-premises venue. ACMA ruled that the fact that his entry onto and exit from the premises were observable from a public place did not mean that he had no expectation of privacy.

 Professor Pearson has persuasively argued against the Finkelstein recommendations, stating that Australia already has enough laws, and that it is wrong to, in effect, convert Media Codes of Ethics and in-house industry codes of practice, into rules that are enforceable, ultimately, in the courts, if someone does not comply with an order issued by the regulator. Apart from the dangers of a regulator not being truly independent, and imposing harsh determinations against small publishers and bloggers who are ill-resourced to defend themselves, Professor Pearson points to the problem of duplication. He observes:

“I have seen few serious ethical breaches that could not be handled by existing laws like defamation, contempt, consumer law, confidentiality, injurious falsehood, trespass and discrimination. There are existing mechanisms to pursue them properly through established legal processes. All of the serious examples cited at 11.11 of the report could have been addressed using other laws such as defamation, ACMA remedies or breach of confidence (or the proposed privacy tort).”

 This brings me back to the existing law of confidentiality and the proposed privacy tort. Whatever the eventual regulatory landscape post-Finkelstein, courts will continue to confront civil claims against media interests for invasions of privacy.

 It will be the High Court, not a trial judge, which authoritatively rules whether Australian law should adapt the existing law of confidence, as English courts have done, or recognize a tort for the public disclosure of private facts. However, I will conclude this address with a tribute to a trial judge, who was the first Australian judge to recognize the existence of a tort based upon intrusion upon privacy or seclusion: Senior Judge Skoien who passed away in December.

 His Honour was a brilliant individual, a great judge and a great person to be with. His father was a Norwegian sailor, who settled on the Downs and became a wheat farmer. His mother was one of the first women to attend the University of Queensland. Tony Skoien shone as a student and sportsman in Toowoomba, as an actor and sketch-writer at University, as a barrister and as a judge. He shone throughout his life, and so it is fitting that I dedicate this Shine Lawyers Public lecture to his memory. That includes his legacy in developing the common law of Australia to recognize a remedy in tort for serious invasions of privacy.

 If our legislators do not enact a statutory cause of action for serious invasion of privacy, then judges will be asked, as Judge Skoien was, to develop the law in this area.

 Last week “A Current Affair” broadcast an ambush of Clive James in a Cambridge street by an ACA film crew. Mr James, a married man aged 72, was confronted by a woman who claimed to have had an eight year affair with him. He has been battling leukaemia in recent years, so the Nine Network’s interest in filming his unexpected reunion with an alleged ex-girlfriend was particularly touching. The fact that Mr James is suffering from leukaemia is probably beside the point. The same ethical and legal issues would arise if a fit old man was ambushed by a film crew in pursuit of a tawdry  “Kiss and Tell” story. Whether or not Mr James had the affair is beside the point. In defamation cases truth is a defence. In privacy cases it is not. Individuals are entitled to be protected from the public disclosure of allegations about private matters, whether the allegations are true or false, or half true. There was no apparent legitimate public interest in publishing to the general public details of Mr James alleged extra-marital affair.

 Mr James probably would have a cause of action under English law if the program was broadcast in that country, and disclosed sensitive private facts without a public interest justification. Whether he has a similar remedy under Australian law remains to be seen. This episode shows that the Australian media will continue to publish “Kiss and Tell” stories in the post-Finkelstein era. Given the failure of self-regulation documented in the Finkelstein Report, and the absence of a statutory tort, Australian judges will have to pass judgment on the state of Australian law in protecting against the public disclosure of private facts. If Australian law is developed to create a tort for invasion of privacy in cases like Mr James and ACA, then many citizens will say to the Australian media: “You asked for it”.

 Both the article and the speech discuss the uncertain path the equity has trod in Australia in developing some form of privacy rights.  Kirby is more fulsome in his call for a statutory right to privacy, not that Applegarth J is far behind.  Applegarth J indicates that the High Court will set the parameters of any protection, definitely in the context of the development of the equitable claim of breach of confidence or a stand alone common law tort of interference with privacy ( a less likely prospect).  It will also be critical in the development of a statutory tort of privacy if the Commonweaqlth Parliament legislates for such an action.  Which it should do.

Both pieces are valuable contributions to the ongoing discussion about this important right.

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