Peter A Clarke

The ABC reports in Professor Barry Spurr mounts legal fight over publication of racist emails in New Matilda on Professor Barry Spur obtaining an interim injunction in the Federal Court not to publish any further details about emails by Professor Spur.  While the report does not specify the basis for injuctive relief it is most likely grounded in section 98 of the Privacy Act.  Interestingly the report also states that Spurr’s counsel relying upon a common law protection against invasion of privacy.  It is difficult to understand the basis in common law for such a submission.

The article provides:

The Sydney University professor suspended over racist emails has taken legal action against the website that published them.

The Federal Court has ordered online news site New Matilda not to publish further details about Barry Spurr’s leaked emails, which referred to Prime Minister Tony Abbott as an “Abo-lover” and made references to “Mussies” and “Chinky-poos”.

Professor Spurr, who was also a consultant to the Federal Government’s national English curriculum review, was widely criticised over the emails after New Matilda published extracts last week.

Lawyers for Professor Spurr argued the publication of the emails breached the Privacy Act, and the court granted an injunction preventing publication of any more details before another court hearing on Thursday.

New Matilda editor Chris Graham said Professor Spurr’s legal team was also fighting to have the emails returned, the articles deleted and the source of the leak revealed.

“Hell will freeze over before the last bit happens,” Graham said.

“There’s no way I will ever reveal the source, regardless of how it proceeds. Obviously, ethically, I can’t do it.”

Graham chose to black out the names of the recipients of the emails but said that does not mean the names will never be published.

“We only quoted in small parts some of the emails and that caused Professor Spurr to complain that all he had done was a ‘whimsical linguistic game’, to use his terminology,” he said.

“We released a second tranche of email to show that that claim is demonstrably false.

“The broader issue about senior university colleagues and other people outside of the university – that is a more difficult public interest test in my view. We haven’t said we won’t publish, but we haven’t said we will.”

In the Federal Court in Sydney yesterday, Professor Spurr’s barrister, Arthur Moses, SC, argued the publication of the emails also breached the common law protection again invasion of privacy.

But Roger Clarke, the chairman of the Australian Privacy Foundation, said no senior court had ever found a tort of privacy to actually exist.

“So because of the nature of the common law you can’t say there isn’t one, but nobody’s ever found one,” he said.

“If that’s the primary basis on which they’re mounting their action, the chances of it winning are pretty low.”

Graham said the case posed possible threats to journalism, but he was still waiting for a legal briefing on its potential ramifications.

“To be frank, my understanding is limited because we only had about an hour’s notice of the injunction and I had to represent myself,” he said.

The ABC has contacted Professor Spurr for comment.

The University of Sydney has suspended Professor Spurr from teaching, engaging in university business or attending any campus while the email matter is investigated.

Thursday’s court hearing is due to coincide with the sentencing of a woman who illegally accessed information that was subsequently published in an unrelated New Matilda article.

Freya Newman, 21, pleaded guilty to illegally obtaining details about a scholarship granted to the Prime Minister’s daughter Frances Abbott by the Whitehouse Institute of Design.

Newman will be sentenced at the Downing Centre Local Court.

The story is also covered in AM in Academic in court claiming published emails were a breach of privacy which provides:

CHRIS UHLMANN: Lawyers for a Sydney University academic suspended for using racist and sexist language in emails are hoping to establish a new area of law as they try to have the messages destroyed.

Professor Barry Spurr’s lawyers yesterday won an interim injunction after accusing the New Matilda website of a clear breach of privacy over the publication of the emails.

They say it’s caused distress, anguish and threatened the employment of the man who recently reviewed the national English curriculum.

But the publisher is standing firm.

Ashley Hall reports.

ASHLEY HALL: To the publisher of the New Matilda website, Chris Graham, the question of whether to publish the emails written by the University of Sydney’s professor of poetry Barry Spurr was a simple one.

CHRIS GRAHAM: Professor Spurr is in a position to influence what every child in every school in every state of the country will learn through the English curriculum, so he’s in a position of enormous educational and cultural influence.

ASHLEY HALL: New Matilda first published limited extracts of Professor Spurr’s messages last Thursday. In them, the academic described Prime Minster Tony Abbott as an “abo-lover” and Aboriginal people as “human rubbish tips”. He also spoke about “bogans”, “fatsoes”, “Mussies” and “Chinky-poos”.

And when Professor Spurr later argued it was all written in jest, Chris Graham published some more.

CHRIS GRAHAM: We only quoted in small parts some of the emails and that caused Professor Spurr to complain that all he had done was a “whimsical linguistic game”, to use his terminology.

We released a second tranche of email to show that that claim is demonstrably false.

ASHLEY HALL: You chose to black out the names of the recipients of the emails to protect their identities. Why not reveal them?

CHRIS GRAHAM: The broader issue about senior university colleagues and other people outside of the university – that is a more difficult public interest test, in my view, and we are still… we haven’t said we won’t publish, but we haven’t said we will.

ASHLEY HALL: In the Federal Court in Sydney yesterday Professor Spurr’s barrister Arthur Moses SC argued: no matter what the emails contain, their publication is a clear breach of privacy which offends not only the Privacy Act, but also the common law protection against invasion of privacy.

Roger Clarke, the chairman of the Australian Privacy Foundation, says that would lay new ground if the court accepts that argument.

ROGER CLARKE: No senior court has ever found a tort to actually exist. So because of the nature of the common law you can’t say there isn’t one, but nobody’s ever found one. So the chances of this winning, if that’s the primary basis on which they’re mounting their action, the chances of it winning are pretty low.

ASHLEY HALL: Professor Spurr’s lawyers also want New Matilda to reveal the source of the emails, but publisher Chris Graham is adamant that won’t happen.

CHRIS GRAHAM: I never, under any circumstances – I mean, it’s just not an option.

ASHLEY HALL: The Federal Court Judge Michael Wigney granted a temporary injunction preventing New Matilda from publishing any new material from Professor Spurr’s emails until the case can be argued in full on Thursday morning.

CHRIS UHLMANN: Ashley Hall.