The Australian’s continued take on a statutory right of privacy.

November 15, 2013 |

The best job in journalism has to be editor of the Legal Affairs.  It is made for lining up behind an issue and just letting loose with propoganda that suits a particular ideological position.  The issue of whether there should be a statutory right to privacy is exhibit A on this point.

In Privacy action only for the stars, says Richard Thomas  Merritt undertakes a slipshod poorly researched quite illogical skip across the issue of a statutory right of privacy.  He uses an interview with Richard Thomas to give cover for his predetermined conclusions.

It provides:

The British privacy official who was among the first to uncover computer hacking by private de­ tectives believes litigation is not capable of providing a solution to all abuses of privacy.

One of those catch all meangingless type of comments.  Privacy abuses come in many shapes an sizes.  Some issues should be in the hands of regulators, some available to individuals and some for both parties to have a right to bring an action.  And some issues are not easily litigated.  But this opening is nothing much more than waffle.

Richard Thomas, who gave evidence at the Leveson inquiry into phone hacking by the Brit­ ish media, said privacy litigation was generally confined to celeb­rities and was beyond the means of ordinary people

The issue is not privacy litigation being beyond the means of ordinary people.  The issue is is that litigation generally is expensive.  Very expensive.  That is the case whether it is commercial, property, common law or any other form of litigation commenced in the courts.  Even with the reforms in Australia litigation is expensive.  There is no evidence that privacy litigation per se should be more expensive than other forms of litigation involving, say, intentional torts or negligence.  The fact that litigation is expensive is not of itself a reason for not having a cause of action.  It is hard for ordinary people to afford litigation generally.  A survey of superior court judgments in Australia and the UK highlight that litigants are often corporate entities or persons with significant means.  Or those who have secured backing from a plaintiff’s firm or a litigation funder.  This has been a problem for a long time.  Conflating this issue with privacy litigation is at best cheeky, quite illogical and somewhat dishonest analysis.

“The main problem is that when you have a right to claim compensation, it tends to only be celebrities or the very wealthy who go near the courts,” said Mr Thomas. who is Britain’s former commissioner for data protec­tion, privacy and freedom of information .

While it is true that the leading cases have involved high profile individuals it is not true to say that it “..tends to only be celebrities..” (in itself a confusing descriptor.  How can you tend to be only celebrities. Tending indicates a preponderance while only denotes exclusivity of outcome.  Very poor drafting).  What about Christopher Hutcheson v News Group Newspaper & ors [2011] EWCA 808.  At best a peripheral celebrity and only on the vaguest description of the term.  Another is McKennitt v Ash.  McKennitt is a performer but hardly a huge celebrity.  What about Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 (QB)(involving a company for troubled children bringing an action to protect children in its care. And Ashworth Hospital v MGN [2002] UKHL 29 which didn’t involve celebrities.  And on and on with other cases.

The comment is generalised to be almost meaningless.  It is analogous to saying only rich people/celebrities bring defamation actions.  There are other defamation actions, or threats of defamation action made by ordinary citizens against others and not only media outlets.  The rich and famous get reported. The rest have their day in court and move on.

Of the few privacy disputes that had gone to court in Britain, the leading cases involved super­ model Naomi Campbell and car racing identity Max Mosley.

They are two cases yes.  Both influential and both heavily reported. But there are many more than “few”.  That is wrong in fact.  Here are a few since 2011 (and not all during that time period):

  • Bristol City Council v News Group Newspapers Ltd Case Reference [2012] EWHC 3748 (Fam)
  • McClaren v News Group Newspapers Ltd Case Reference [2012] EWHC 2466 (QB)
  • King v Sunday Newspapers Ltd Case Reference [2012] No NICA Ref GIR 8547
  • WXY v (1) Gewanter (2) Positive Profile Ltd (3) Burby Case Reference [2012] EWHC 1601 (QB)
  • Trimingham v Associated Newspapers Ltd Case Reference [2012] EWHC 1296 (QB)
  • CVB v MGN Ltd Case Reference [2012] EWHC 1148 (QB); [2012] EMLR 29
  • Tulisa Contostavlos v Michael Mendahun & Others Case Reference [2012] EWHC 850 (QB)
  • Spelman v Express Newspapers (No. 2) Case Reference [2012] EWHC 355 (QB)
  • Matthew Cooper & Anr v Mark Turrell Case Reference [2011] EWHC 3269 (QB)
  • Ambrosiadou v Coward (CA) Case Reference [2011] EWCA Civ 409

So it is not a backwater jurisdiction nor a jurisdiction involving the rich and famous.  The claimants now come from all backgrounds with different types of privacy issues.  That is the way the law develops. From a leading case or two to a more broad application.  Hardly a novel development.

“For the ordinary person, to start claiming compensation is a financial and psychological bar­rier -particula rly in the ab­ sence of any sort of class action,” Mr Thomas said.

True.  Much like it is the case with all litigation.  Again this is not a novel problem nor one confined to privacy.

He believed any right to sue for invasions of privacy needed to be part of a regime in which regulators were equipped with extensive powers.

This suggestion has merit, if it gives regulators a right to bring an action on behalf of individuals or a group as well as letting individuals bring an action on their own behalf.  Why should it be one or the other.  ASIC brings actions under the Corporations Act while that same piece of legislation gives individuals standing to bring actions as well.  Similarly the ACCC can bring proceedings for breaches of consumer protection regulations as can individuals.  There is a lot to be said for both parties having a right.  It is not beyond the wit of legislative drafters and the power of the legislators to have both the Privacy Commissioner and individuals having a cause of action.

That is not to say I am hostile to a statutory tort, but I am scep­tical about whether, by itself, it would have much of a moder­ating effect on unacceptable activity,” he said.

Is that a correct basis for establishing a tort?  Short answer – no.  A tort is designed to remedy a wrong committed against a person or land.  It is not a form of societal modification behaviour therapy.  Perhaps it might moderate unacceptable behaviour, perhaps not.  But that is not the issue.  The tort of nuisance and trespass have existed for centuries.  Does it’s existence  moderate individuals from trespassing or creating a nuisance. In as much as it is something that can be tested I suspect the answer is no.  Even so that does not mean such causes of action should be repealed.  Similarly has crime of murder stopped people murdering each other.  The evidence suggests not.  It is a silly comment that betrays a lack of knowledge of the law and public policy.

“It tends to be only the very wealthy who go near the courts.” Mr Thomas said authorities initially took little interest when his office found private detec­tives had been illegally accessing computer data bases for the Brit­ish tabloid press, law firms, banks and insurance companies.

Again, wealthy people can be more enthusiastic users of the court process.  For obvious reasons.  It is an access to justice issue, not a privacy torts issue.

“We prosecuted, but ended up with very , very low fines.” One of the worst cases resulted in a conditional discharge,”he said

However, stronger data pro­tection laws were later intro­duced thiat empower Mr Tho­mas’s successor to impose penalties of up to £500,000 ($856,500).

And that is good news.  But how is this at all relevant to having a statutory right of privacy.  One does not preclude the other.  An authority prosecuting a breach does not, in an of itself, prevent civil proceedings being issued.  Often after the prosecution is successful (for obvious reasons).  So why not increase the penalties and even criminalise some behaviour and let the authorities bring actions.  But also let civilians have a right of action.

Mr Thomas, who left office in 2009, will be keynote speaker at a privacy conference ln Sydney on November 25.

The conference, hosted by the International Association of Privacy Professionals, coincides with an Australian Law Reform Commissio n’s inquiry into whether the federal government should create a statutory privacy tort

Civil Liberties Australia has told the commission that it supports the introduction of a statutory cause of action that should be ”.just, quick and cheap” so it is not available only to the rich and famous

All of those aims are noble.  With a statutory right of privacy it is important to ensure the elements are not complicated, the defences clear and robust and there are not unnecessary gateway impediments, such as preliminary points that have to be met before issuing or during the process.  Cost however is a matter the legislature and the courts must address to streamline the process even further.

However the Communications Alliance, an industry group representing telecommunications manufacturers, vendors and suppliers, told the ALRC it had little confidence that a cause of action would result in any additional benefit for most people beyond the range of remedies already available.

This is a familiar complaint but an entrenched interest group. But it does not address what the remedies already available. More to the point, what are the substantial causes of action which will address interferences with privacy.  Nuisance, trespass, misuse of personal information.  Some fit into some categories but there are big gaps.  The Communications Alliance has clearly not read the ALRC 2008 report and its chapter endorsing a statutory right to privacy.

Mr Thomas told The Australian that litigation was an unreliable method of protecting privacy. He believed the best possible regime for protecting personal privacy would include a  mixture of techniques.

What exactly does unreliable actually mean?  If it means occasionally unpredictable then he may be right. That is the essence of litigation. He is correct that privacy protection should include a mixture of protections.  That, is for the benefit of all.  

“You need a regulator with some decent powers of investigation and to impose sanctions,” he said.”You need to have compensation rights as part of the mix, butI don’t think you can rely upon that.”

 Having a robust regulatory structure with proper powers of investigation and sanctions is an excellent idea.  The Information Commissioner’s Office in the UK has been quite proactive in the past but has its critics.  But having a broad range of options is also important.  Not the least being that a person should have the right to bring an action by himself or herself without having the rely upon a regulator to decide whether to take up the case or not.  It is more than a little patronising to say that a regulator is the sole custodion of knowing what is the interests of an individual.  Regulators can, and sometimes are, poor judges of what actions to take and when to take them.  Given them the power but let others have the option to have an independent exercise of their own rights.

There is plenty to discuss in determining whether to have a statutory right of privacy or not.  It is not a one sided debate.  Merritt’s article is a selective and misleading polemic dressed up as reportage.  This is just another round in the ongoing obsession the Legal Affairs has on the subject. It makes for an interesting study on how not to report and how poor research can be.














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