Peter A Clarke

Barry Spurr’s action in the Federal Court against New Matilda may have received reasonably close coverage but the basis of the claim for injunctive relief has not been well described.  The Guardian in Barry Spurr drops legal action to force New Matilda to reveal source of emails reports on Spurr’s attempt to merge a Privacy Act claim with an equitable breach of confidence claim and inviting the court to recognise a statutory tort of privacy.  As much as the courts should develop privacy protections either through the development of a claim of misuse of private information or a tort of privacy this fact situation is not conducive to such a development.  It is a useful case to show how difficult and complicated the Privacy Act is.  It is poorly drafted and even more poorly regulated.

The article provides:

This case and the reportage has prompted an interesting opinion piece in Spurr vs New Matilda case pits privacy against public interest   which provides:

Don’t be distracted by theatrics about political correctness, the boundaries of bad humour and professorial impropriety. The real excitement in the “Spurr Affair” has been occurring in the Federal Court. It is excitement about the shape of privacy in Australian law and about legal recognition of “public interest”. That interest is a compelling “right to know” as a basis of the liberal democratic state, rather than just public curiosity.

Prior to the release of emails from Spurr to as-yet-unidentified recipients, most Australians had never heard of the Sydney University Professor of Poetry. Supposedly jocular vilification in the email exchanges has attracted national condemnation since their unauthorised publication by New Matilda.

Publication has been justified on the basis of public interest. Do we need to know that one of the most senior academics at one of Australia’s most senior universities privately uses language that you’d typically associate with pottymouth characters in South Park?

New Matilda appears to consider that there’s value in knowing – and condemning – the character of one of the architects of the national curriculum review. It’s engaged in a naming and shaming exercise.

Apparently to deflect criticism of its action, New Matilda asserts that Spurr’s use of the university network means that his correspondence is public and thus not legally protected. That assertion is contentious; it means that any official – rather than merely any university employee – would be unprotected.

Spurr gained an interim Federal Court injunction to freeze impending publication of his email. He has sought other remedies, including disclosure of New Matilda’s source (who isn’t protected under whistle-blowing law).

His litigation is an opportunity to strengthen inconsistent recognition of privacy in Australian law. It may also reaffirm the principles regarding public interest highlighted in the Spycatcher and Defence Papers judgments. In these cases, the court recognised that informed public understanding on matters of national interest overrode concerns such as the maintenance of secrecy or embarrassing a government.

Spurr appears to be relying on the injunction provisions in section 98 of the Privacy Act 1998, the national information privacy statute, and a claim that publication breaches his common law right to privacy. New Matilda will presumably rely on section 7B(4) of the same Act, which strongly privileges the media.

Four things we have to understand about this case

1. As an employee, Spurr’s use of the university network is covered by the institution’s “acceptable use” policy, typically tied to an employment contract. Policies associated with employment in Australian universities usually identify that some staff email is confidential and that all staff email is a university rather than public resource. Spurr and the university may disagree about who has copyright in the email. That copyright has been infringed by New Matilda, which may rely on traditional defences regarding reporting in the public interest.

2. Protection of privacy in Australian law is complex, evolving and often misunderstood. There is disagreement about the best mechanisms for stopping a disregard of privacy and gaining compensation for that disregard. There is no comprehensive national law for damages occurring from breaches of privacy. Despite recurrent recommendations, the national government is unlikely to provide a statutory basis for such damages. Importantly, the national Privacy Act is weak but is not the only law that can protect personal life. The protection of personal life outside that Act is uneven but more common than often recognised, because much action is settled without a final judgment.

3. There are competing claims of public interest. Spurr, like any academic and any non-academic, can reasonably expect that most correspondence will not be placed in the public arena. Along with all Australians he should expect a freedom from inappropriate interference, a respect for his privacy. There is a fundamental public interest in allowing people to be undisturbed. That clashes with New Matilda’s claim that there is a compelling public interest in knowing about the character and values of policymakers and educators. The litigation potentially requires the Federal Court to articulate a balance between those interests.

4. Finally, the dispute may revive questions about media self-regulation. Are invasions of privacy a legitimate cost of a robust free media in an era where journalists might be imprisoned for reporting on national security? Can we expect News Corp and New Matilda to behave responsibly?

For academics, the Spurr Affair is a reminder that all email on a university network – along with records of your browsing – is open to scrutiny by university managers. It is not truly private: if you want “real” privacy use a non-academic account. It is also a reminder that some managers will assert that the email is university rather than personal property, irrespective of whether you’re a pottymouth or a puritan.