Spurr v New Matilda – a flurry of commentary on privacy law thus far if nothing else…so far

October 25, 2014 |

The Federal Court proceeding Professor Barry Spurr v At Large Media Pty Ltd ACN 144 75 316 & Anor has generated considerable reportage and analysis about privacy law and its inadequacies in equal measure with commentary on Professor Spurr’s attitude to various groups within the community and his general penmanship as revealed by his leaked emails.  His claim appears to be grounded in the Privacy Act 1988 together an equitable claim of misuse of private information and a claim under a nascent tort of privacy.  The hearing of his matter has been adjourned to 8 December 2014 where there will be a final hearing with a time estimate of 3 days.  Further directions include:

  • the Applicant filing a Statement of Claim and any further affidavit by 7 November 2014;
  • the Respondents filing a Defence and any affidavit evidence by 21 November 2014;
  • the Applicant filing any Reply and affidavits in reply  28 November 2014;
  • the Applicant filing and serving an outline of opening submissions by 1 December 2014
  • the Respondents filling and serving an outline of opening submissions by 3 December 2014
  • the Applicant filing and serving outline of submissions in reply by 5 December 2014.

The interim injunction regarding the use and disclosure of the Applicant’s emails in the possession of the Respondents remains in place. To date the Applicant has filed 2 affidavits, dated 21 and 22 October 2014 in support of the Originating Application dated 21 October 2014.

Once the Statement of Claim and Defence are filed the nature of the claim and corresponding defence will be known.  It is highly likely that there will continue to be some reliance on the Privacy Act 1988, probably section 98.  There needs to be a claim under at least one piece of Commonwealth legislation to enliven the Federal Court’s jurisdiction.

The interesting issue will be whether the Applicant seeks to prosecute a misuse of private information claim in equity and alleging a tort of privacy.  Also possible, at least according to commentators, is a breach of copyright action.  Then there is focus of the claim, whether it relates to a data breach, in which case the source of the emails may be a focus or whether the claim is against the Respondents for publishing private material.  There are many permutations and combinations which will only be resolved once the pleadings are finalised.

There are many “whethers” in this case.  Whether the court will entertain a tort of privacy given the High Court’s aversion to lower courts being adventurous in developing new law.  Whether the facts support the further development of the equitable cause of action.  Whether the facts support an application of the Privacy Act in general and section 98 in particular and whether a defence under section 7B will apply or the Respondents will be regarded as small business operators.  Whether there is a public interest test applicable and if so whether the court will undertake a balancing act and how it regards the scope and operation of the public interest test.   These “whethers” may be critical in determining how much of a break through case it will be.  The Federal Court has not been a fertile ground for the development of privacy jurisprudence.  In 2004 Justice Heerey, in Kalaba v Commonwealth [2004] FCA 763 held that he “weight of authority” is against a tort of privacy.  Heerey J was a conservative judicial officer but was prepared to consider the issue if the right case presented itself, stating  at [7]:

Bearing in mind the high level of the test that Dey and General Steel require to be satisfied, if this were a case where there was even a faintly arguable case that there had been an infringement of a right of privacy of a kind entertained elsewhere in the common law world, and particularly by American Courts, I would be reluctant to exercise the power of summary dismissal. The history of the common law shows that sometimes seemingly unlikely claims proceed through the courts and ultimately succeed at the highest level. However, it is instructive to note that in Lenah Game Meats, Callinan J at [323] referred to an article by Professor William Prosser, author of the standard text, Prosser and Keaton on the Law of Torts, which noted that protection for privacy had been afforded in American Courts in four categories of case.

“(1) Intrusion upon the plaintiff’s seclusion or solitude or into his private affairs;
(2) Public disclosure of embarrassing private facts about the plaintiff;
(3) Publicity which places the plaintiff in a false light in the public eye;
(4) Appropriation for the defendant’s advantage of the plaintiff’s name or likeness.”

That has been the issue in privacy related litigation.  Having the right set of circumstances for a court to consider when developing a cause of action.  In ABC v Lenah Game Meats the High Court was prepared to consider the existence of a tort of privacy but that was not the right case.  Of course the legislature could easily fill the gap by legislating a statutory tort of privacy and improving the scope and operation of the Privacy Act but that has been a failing of both sides of the aisle in the Parliament.

The commentary has served a useful purpose in highlighting the poor, if not chaotic, state of the law and the inadequate the protections that are in practice.  It has ranged from the legally very informative Spurr vs New Matilda case pits privacy against public interest, the carefully considered from a journalist’s perspective in Spurr’s slurs: a privacy breach in the public interest, the more prosaic reporting at Publication of Barry Spurr’s racist emails part of political attack, court hears and the quite witty and sometimes informative Richard Ackland with Barry Spurr v New Matilda: the facts, the law and the porridge.

Interesting days for those practising in or otherwise just interested in privacy law.

One Response to “Spurr v New Matilda – a flurry of commentary on privacy law thus far if nothing else…so far”

  1. Spurr v New Matilda – a flurry of commentary on privacy law thus far if nothing else…so far | Australian Law Blogs

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