Peter A Clarke

Stay in one spot long enough and you will see Richard Ackland reheat an older article, add a paragraph here, lose one there and spruce it up with new photographs and hey presto another deadline met.  His latest outing is his article is his offering to the Guardian in The new frontier in assaults on privacy and what the law is – or isn’t – doing about it.   Ackland has never liked a statutory right to privacy.  That doesn’t make him Robinson Crusoe.  Many in the media, particularly the older journalists see it as almost an existential threat. His style is to point to a  range of options other than a statutory right to privacy.  And he is right, there are options, such as the tort of trespass and nuisance (as he claims in this article).  What he doesn’t mention is that those options are near useless.  And then there is the evil of injunctions.  The death of journalism.  Which of course is pure tosh.

But the real problem with this piece is the reheating of old work.  This article more than a little resembles a piece Richard did on 15 April 2011 in Audacious invasion of the privacy snatchers for his previous paymaster, the Fairfax press (which I covered in a post back in 2011).  And there is another Guardian piece Barry Spurr v New Matilda: the facts, the law and the porridge which also covers, yes, the evil of injunctions in the privacy sphere.  Sloppy journalism and weak argument.

The best way to understand the similarity of Ackland’s 2011 and today’s article read one then the other.

Today’s Guardian story provides:

Max Mosley, Naomi Campbell, Barry Spurr, Gina Rinehart, politician David Campbell, Michael Douglas, Lara Bingle, Princess Caroline of Monaco and Hulk Hogan – just some of the celebrated people who have asked the courts, with varying degrees of success, to protect their privacy.

Australia stands out as a country that does not provide an actionable right to privacy – that is, the ability to sue someone who has seriously invaded the secrets of your private life. The courts have dabbed at it and tried to develop a privacy tort or bend the law relating to breach of confidence so that it extends to protecting personal privacy.

So far, there’s been nothing certain, comprehensive or clear.

Into the void has arrived a heap of law reform proposals, both commonwealth and state, saying that we are seriously behind the eight-ball when it comes to providing remedies for those who feel their privacy has been breached.

Unlike happiness or clear air, privacy is now elevated to the status of human right, even though it can’t be properly defined or nailed-down.

The latest recommendations are from the standing committee on law and justice from the upper house of the NSW parliament, with a report this month called Remedies for the Serious Invasion of Privacy in NSW, and a similar exercise from the South Australian Law Reform Institute at the University of Adelaide.

Both reports are urging prompt action and for NSW and SA to go it alone – piecemeal is better than no meal.

The NSW committee recommends that NSW adopt the key features of another report, this one from the Australian Law Reform Commission in 2014, called Serious Invasions of Privacy in the Digital Era. The work of the ALRC on this topic has been studiously ignored by the current attorney general, George Brandis.
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The digital era, with cameras on mobile phones, social media platforms, drones, surveillance and hidden recording devices, has opened up a new frontier for assaults on privacy.

The findings in both NSW and SA are that suburban life is rife with privacy threats. People have cameras trained on their neighbour’s driveways, backyards and bedroom windows and, even though there was no direct evidence of this, citizens live in fear of being filmed by drones. Stalking former partners with tracking devices is rife and so too revenge porn, where images of intimate sexual encounters of former lovers are posted online.

The NSW committee says that there are around 3,000 revenge porn sites and that one in 10 Australians between 18 and 55 have had a naked or semi-naked image of themselves circulated without their permission.

The belief is that these problems could be solved if people had a right to sue those who trample on their “seclusion or private affairs”.

Even so, it’s not as though we are without remedies. The Crimes Act can deal with revenge porn, intimidation, voyeurism, filming a person engaged in a private act, filming a person’s private parts, and installing cameras so that someone can be observed or filmed.

There are laws relating to AVOs, surveillance and a commonwealth bill is in the pipeline that criminalises revenge porn. There are also torts of trespass and nuisance.

The various law reform bodies say there are too many gaps in the patchwork and we have to go further. There have to be ever scarier remedies than criminal enforcement – such as injunctions and damages.
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Media organisations have genuine concerns.

Would publication of a sexual affair involving a prominent politician be subject to a successful privacy suit or not? Of course, that very much depends on the circumstances. It was always hard to see the public benefit in publishing details of NSW politician David Campbell’s visits to what used to be known as Ken’s Karate Klub.

However, there could be a public interest in publishing details of an Australian cabinet minister’s affair with a member of China’s ministry of state security, or maybe even a tryst across party lines, such as we saw in the case of Cheryl Kernot and Gareth Evans.

The proposed requirement in NSW is that for liability to arise, privacy would have to be invaded intentionally or recklessly. However, for corporations, including media publishers, the threshold is a lot lower and their liability arises if they publish offending material negligently.

The most likely available defences are flimsy and would, in all likelihood, involve a tribunal or court weighing the public interest in personal privacy against the public interest in freedom of expression.

Three guesses who is going to win a round where legislatively protected personal privacy is weighed against the nebulous concept of the public’s interest in freedom of expression?

There is no Australia-wide human rights act, so for courts and tribunals to balance competing interests is a speculative endeavour.

There is also a smorgasbord of proposed remedies available to privacy plaintiffs: damages, injunctions, account of profits, take down orders and apologies.

Interim injunctions will be the first port of call. It is not an overly burdensome exercise for a plaintiff to successfully apply for an interim injunction to stop publication of a story, pending a full hearing.

In many instances, this would have the effect of killing a time-sensitive scoop stone dead because it would usually be weeks before final orders would be made – another impediment to the already fraught endeavour of investigative journalism.

There is a further unattractive proposal in the NSW law and justice committee’s report – giving power to the privacy commissioner to make orders for publishers to take down stories from their news websites, to cease and desist from further publishing and to make apologies.

Orders of this nature, exercising editorial control by a public servant, no matter how worthy and well-intentioned, are anathema to media defendants.

If what has happened in England is any pointer, it is the rich, notorious and famous who predominantly used, and misused, the cause of action in privacy. Injunctions and super-injunctions generally kept their extra-curricula activities under wraps – until the dam burst and the gossip was spilled into the public domain.

It is governments that make the deepest incursions into our lives, so that might explain their reluctance, so far, to do anything to protect the privacy of their citizens.

The difficulty is getting the balance right – to protect people’s seclusion and sense of self from vengeful former partners and harassing neighbours, while not hamstringing genuine public interest journalism.

So far, it has been a balance that has been beyond the reach of the proposals coming from law reformers.

 The Fairfax 2011 piece provides:

What does the Skyping to an audience of sniggering cadets of a consensual sex act at the military college in Canberra and the hacking by the Murdoch press of the phone messages of celebrities, politicians and royals in London have in common?

The unifying thread must be the quite shocking invasion of the victims’ privacy. The breathtaking audacity of the perpetrators has led to claims that these cases will inevitably cement the arrival, either by parliament or the courts, of an Australian law of privacy.

It is a far from settled landscape but maybe, at this juncture, it should be declared that we already have a fast-developing law of privacy in the form of actions for breach of confidence. The question is, do we really need any more law, particularly in the form urged by the Australian and NSW Law Reform Commissions?

In England, phone hacking by investigators and journalists for Rupert Murdoch’s News of the World has already led to criminal charges and imprisonment.
That is unlikely to be the end of the matter. Two other NoW journalists have been arrested and others will inevitably be dragged in.

Potentially thousands of people have had their phones hacked, including Gordon Brown, as chancellor of the exchequer, and John Prescott, as former deputy prime minister. The scale of the criminality is awesome.

There is now a slate of civil privacy actions against News Corporation’s subsidiary, News International. The courts have ordered NoW to produce millions of emails and other documents. Those orders hastened the offer to settle with half-a-dozen or so victims.

James Murdoch, the third most senior person at News Corp, this month made the priceless observation: ”What we were able to do is really put this problem into a box.”

Noticeably absent from the settlement offers was the Australian woman who did product branding and intellectual property work for the model and lingerie impresario Elle Macpherson.

Mary-Ellen Field told the ABC’s Mark Colvin how her career and livelihood were ruined by NoW phone hackers because unusual information about Macpherson, which would have been confined to only a few people, ended up in the tabloid. Ms Field was wrongly blamed for this breach of privacy and was fired.

One of the gruesomely fascinating things to emerge has been the connection between the newspaper and a former corrupt policeman by the name of Jonathan Rees.

Rees was the suspect in the murder of Daniel Morgan, his partner in a private investigation business. The inquiry into this murder was derailed early on by police corruption. Nonetheless, there were at least five separate investigations over 24 years, and an aborted trial. The whole disaster cost £50 million and was the most expensive and longest running failed prosecution in Britain.

Rees went to jail on an unrelated matter, but the point is that for many years he did snout work for NoW, even while awaiting trial in the Morgan case, and was paid up to £120,000 ($186,000) a year for information.

These are the depths to which ”journalism” has sunk, leading to cries for sterner legislation and the blocking of Murdoch’s takeover of the balance of the shares in the dominant British pay TV company, BSkyB.

A year ago Britain’s leading defamation judge, Justice David Eady, made a speech at the Centre for Law, Justice and Journalism in London, saying the uncertainty of the law surrounding privacy had damaged freedom of expression. Too much of the Strasbourg-based European Court of Human Rights’ way of doing things seemed to be the problem, resulting in celebrities being able to protect their privacy when ”popping out for a pint of milk”, he said.

Sections of the British media blame Eady for liberalising the law of privacy – particularly for his ruling in the privacy case taken by former formula one president Max Mosley – and conducted a campaign against him.

Last September he was replaced as the High Court’s defamation list judge. Mosley has sought a ruling in Strasbourg that would require journalists to notify victims of potential breaches of privacy in advance.

In Australia uncertainties also abound, although most people aren’t concerned about legal abstractions as to whether equitable actions for breach of confidence are developing too many tort-like features.

Thinking of that unfortunate military cadet in Canberra, and the abuse she suffered, brings to mind one of our landmark, but little heralded, Australian cases.

In December 2008 the Victorian Court of Appeal said in a case called Giller v Procopets that the plaintiff was entitled to compensation for breach of confidence as a result of her former partner showing a video of their sexual liaisons to her friends, family and employer.

Among other things, the court granted damages for mental distress, which was a big legal leap.

A leading researcher and thinkers in this area, Professor Barbara McDonald, of the University of Sydney, says the appeal courts are just waiting for a suitable case to sharpen up privacy protections.

So far privacy law, as a separate animal, has been slow to develop. Breach of confidence has stepped into the field and is developing rapidly. A legislated remedy of the variety being pushed by the law reform commissions is simply unnecessary.

As for James Murdoch’s box, in which all the hacking troubles are supposed to be contained: just wait for it to burst apart.