Articles on inquiry into statutory right of privacy

October 11, 2013 |

There are a few things predictable in the world; death, taxes and the Australian spilling barrel loads of ink in its quest to make sure a tort of privacy never reaches gestation.  Whatever it takes seems to be the editorial policy.

The Australian’s latest foray on its crusade against a tort of privacy is prompted by the release of the ALRC discussion paper this week.  Two articles are devoted to the non story;  Tort is not the only privacy option  and Tort won’t stop privacy breaches: professor

Tort is not the only privacy option provides:

AN inquiry commissioned in the last months of the federal Labor government has raised the prospect of changing the law to prevent the media publishing information that might amount to a serious invasion of privacy.

The inquiry, ordered by former attorney-general Mark Dreyfus, has also raised the prospect of stripping publications of profits for breaches of privacy and requiring them to publish court-ordered corrections and apologies.

It is a discussion paper so the options are set out in the broad.  Not much more at this stage.

The Australian Law Reform Commission, which is conducting the inquiry, is also considering whether there should be any limit on the amount of monetary damages that might be awarded for breaches of a new privacy tort that Labor asked the commission to design.

This too is hardly novel.  The ALRC considered the same issue in 2008 as did the Government discussion paper in 2011.  Given the caps on defamation payements this is hardly unusual.

These are some of the key matters outlined in an issues paper that is the first stage of the inquiry ordered in June by Mr Dreyfus.

That is putting things a little high.  Key for the media.  There are more core issues, like whether to have a a tort.

Labor’s terms of reference require the commission to make detailed recommendations on the design of a possible new cause of action – or statutory tort – that would enable people to sue each other for serious invasions of privacy.

However, doubts have emerged about whether a privacy tort and its associated remedies will ever be enacted.

Doubts have always emerged for the Australian.  There is strong institutional resistance from some parts of the media, some academics and some politicians.  Nothing new there.

The journalists’ union has called for the commission’s terms of reference to be updated to reflect the fact that the Coalition government takes a different view about the case for a privacy tort. In opposition, Attorney-General George Brandis had said the push for a privacy tort was part of a “gradual, Fabian-like erosion of traditional rights and freedoms in the name of political correctness”.

The change of government may change the chances of such a tort being enacted.  Attempts have been made to roll the privacy issue into a freedom of speech campaign.  There are freedom of speech issues but not intrinsic to privacy protection. It is certainly not a political correctness issue.  Privacy issues have been longstanding and recognition in one form or another has been recognised in equity and part of political debate in the UK and US since the 18th century.  It is hardly a new fangled obsession by the “rights industry.”

This week’s issues paper also indicates that the inquiry, led by professor Barbara McDonald, will be examining ways of filling the gaps in privacy law without creating a statutory tort.

A discussion paper is hardly doing its job if it only proposes one option and no other.  That removes the discussion bit from the paper. But that in itself means little.

It also indicates the commission is aware of the severe impact on freedom of communication from any interlocutory injunction designed to prevent publication of information regardless of whether the information is true.

This again is hardly new territory.  Injunctive relief is a matter requiring careful consideration in media related privacy actions. But the thing is that privacy protections is not only about the media.  Many privacy intrusions are not about the media.  Not about publication.

The issues paper says the inquiry builds on the work of four other inquiries into privacy law and it is not useful to ask again whether the community supports or opposes a statutory cause of action.

Thank goodness.  At a point in time governments have to make up their mind or give it over to the people to decide.  Given the reluctance to hold referenda it is time for the Commonwealth Government to look at the reports, of which this inquiry will be just the latest, and decide.

“The answer to that question may well depend on both the precise legal content of the statutory cause of action as proposed by the ALRC, and on the other or alternative recommendations that may be made in respect of possible ways the law could prevent or redress serious invasions of privacy,” the issues paper says.

Err, yes.  Hardly anything new there.

It says there are notable gaps in privacy protection and the issues paper outlines a series of matters “in which the existing law may be supplemented, short of a broad statutory cause of action”.

As an approach.

It describes interlocutory injunctions preventing publication of information as “the most significant restriction on freedom of speech and freedom of the media to report on matters of public interest and concern”.

It notes that when privacy injunctions are considered by courts in Britain, they are required to take account of extensive provisions in the UK Human Rights Act that refer to the protection of freedom of expression under the European Convention on Human Rights

Tort won’t stop privacy breaches: professor provides:

BARBARA McDonald is not one of those who believes a privacy tort would be some sort of magic bullet that would solve all privacy concerns.

“The law cannot do everything – even if we have a statutory tort for invasion of privacy it is not going to stop people invading privacy any more than a law against murder stops murder,” she said.

Hard to argue with this.  Laws protecting rights are there because those rights are breached.  This is trite.

As the commissioner in charge of the Australian Law Reform Commission’s latest inquiry into privacy law, Professor McDonald’s views take on critical importance to both sides of the privacy debate. In an interview with The Australian, she made it clear she was taking a black-letter approach to the terms of reference drawn up by former attorney-general Mark Dreyfus.

She has been asked to produce a detailed design for a privacy tort – or statutory cause of action – so people could sue over what the terms of reference call “serious” invasions of privacy.

But she is also examining alternatives to a privacy tort that could fill the gaps in privacy law without the need for the creation of a new method of litigating.

Next year, when the Privacy Commissioner will be able to impose civil penalties against organisations, those gaps will diminish.

Wrong.  This is a silly and completely erroneous statement even giving latitude for the wooly language.  The Privact Act does not cover small business operators, does not cover media or political parties just to name a few exceptions.  It does not give individuals any right to protect their own privacy.  The legislation has significant gaps.  The Privacy Commissioner’s powers will enable him to enforce breaches of the legislation, which will still have the gaps.  This is a very misleading and mischievious statement.

In a significant departure from previous inquiries into a privacy tort, Professor McDonald will examine ways of strengthening the protection of freedom of communication to maintain a balance between stronger privacy protection and free speech.

And balance is important.  Very important.  But also what needs to be released is that while there can be tension between privacy and freedom speech there are many privacy related issues which have absolutely no freedom of speech element to it.  For example, a neighbour using a drone to peer into his neighbour’s yard as a basic example.

Part of the issues paper she released this week raises the prospect of enacting a statutory provision based on the free-speech sections of the European Convention on Human Rights.

The issues paper suggests this mechanism could be used not just when considering remedies for breaches of a privacy tort, but also when dealing with remedies for breaches of other causes of action already part of Australian law.

“We have got a lot of work to do before I can say what we are doing but quite clearly we are asking a question about it, we are asking for views on how something like that would operate and whether people think it would be helpful,” Professor McDonald said.

“We will look at how that would play out in court and see what people think about the idea of possibly some more protection of freedom of speech than perhaps we might already have.

“We are asked to balance – to look at invasions of privacy but also the balancing of privacy with freedom of speech and open justice.”

Professor McDonald told The Australian that any proposal for a new tort would be “severable” so other proposals could stand alone. That raises the possibility that the alternatives to a tort – and possibly the new mechanism to protect freedom of communication – could be the ultimate outcome when the federal government responds to the commission’s work.

This is hardly extraordinary.  Most proposals are multipart.  The ALRC 2008 had a large number of recommendations, many taken up with some modified, a few rejected and quite a few put in the too hard basket.

Professor McDonald’s final report will be handed to Attorney-General George Brandis, who was opposed to the push for a privacy tort when he was in opposition.

The commission will be taking submissions on the issues paper for the next five weeks. A discussion paper is due to be released by the end of February, followed by more consultations. A final report is due in June.

The Australian’s reportage is very heavily skewed against a statutory right of action.  No surprises there. However there are two sides to the debate, probably more than two.  It would just be a pleasant change if the Australian would take a breath, look around, and recognise that.  Perhaps even look at the other side of the issue.

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