Media watch has a segment on “Media and privacy”, focusing on tort of interference with privacy. The venerable Paul Barry in full stentorian mode opines against it. Quelle surprise!

April 17, 2023 |

Tonight ABC’s Media watch broadcast a segment on the Attorney General’s Report on a Review of the Privacy Act, titled “Media and privacy”, with a focus on a proposed statutory tort of privacy. The coverage followed the traditional line adopted by media commentators in Australia, yes there are breaches but a tort of privacy would suppress free speech and so reform is a bad idea. Being Media Watch it was a reasonably comprehensive story, within the time alloted. But still quite predictable and overall not particularly sophisticated. The usual suspects came out against, such as Justin Quill with the usual lines about how such a reform will help the rich and kill investigative journalism. The supporters were also predictably supportive, being Michael Douglas and Barbara McDonald, but a good deal less shrill. Between now and the release of a draft bill expect strident stories from the participants in the Right to Know Coalition. In the past Chris Merritt (Privacy tort a blow to free speech 18 March 2009), Ainslie Van Onsolen (Push for a tort is misguided and wrong 21 September 2012), The Australian) and Micheal Stutchbury (Lawsuits no way to defend privacy or free speech 26 July 2011), among many others, have dipped their thumbs into the ink barrel when a privacy tort is mentioned and penned jeremiads about the end of journalism, the end of freedom of speech and no more public interest exposes if there such a privacy tort is enacted. There is a sameness about the columns; pictures of a grim future with judges wielding their gavels with abandon crushing story after story and villainous reprobates being protected. The offerings tended to be long on emotion and short on analysis. That does not mean it has not had an effect. Governments of both persuasions have steered clear of adequate privacy law reform for decades.

It is entirely understandable that the media would have an interest in privacy reform.  The problem is that it does not accept that the defence of public interest and freedom of expression in any tort will be given any weight.  That is fear based on emotion not logic.  On a more practical level given the gaping lacuna in the law regarding privacy, and the practical inability of the aggrieved to take any legal action for invasions of their privacy, it is in the media’s interests to keep  the status quo

The Media Watch report is quite a reasonable analysis, albeit limited by the fact that as the title suggests it focuses on media and privacy. Which is not the whole issue.  What is lost in this story is that there are many circumstances where the media is not involved, the interference with privacy is one person intruding on the seclusion of another.  Or interfering government officials.  Or organisations and businesses surveilling customers or just ordinary individuals.  With new and increasingly intrusive technology not having legal recourse is a failure of public policy.  None of this will convince the media and the fact that Australia is an outlier in this area of law causes it no concern at all.

The transcript of the story provides:

But now to privacy and the media. 

And here is a question: if the media in Australia invade your privacy, what can you do about it? 

Answer: beyond a complaint to the Press Council or ACMA, not much. Unless what they’re saying is untrue, in which case you might be able to sue for defamation. 

So the media can happily carry out celebrity hits like this: publishing a photo of Lara Bingle naked in the shower, as Woman’s Day did in 2010, which we’ve further blurred; outing Hollywood star Rebel Wilson as gay, as the Sydney Morning Herald did last year; and snapping Kate Ritchie outside a Sydney drug and alcohol clinic, revealing she’s been in rehab, as the Daily Mail did in 2022.

Or, indeed, hounding a Sydney limo driver for days after he was identified as the city’s COVID patient zero: 

STEVE HART: The driver said his reputation is ruined and his life destroyed and he’s sorry. The couple say they have fully recovered physically but restoring the damage may take much longer.

– Ten News First (Sydney), 1 July, 2021

With intrusions like those increasingly common, it’s no wonder that many people want action. And now the government is promising to take some. 

Last month, a major review of the Privacy Act recommended substantially strengthening the law. 

And the media reacted with alarm: 

Media rivals unite against ‘chilling’ federal privacy law proposals

– Australian Financial Review, 10 April, 2023

Media companies slam proposed reforms to Australian privacy laws

– The Guardian, 10 April, 2023

Media companies warn changes to privacy laws would have a ‘chilling’ effect on press freedom

– The Australian, 9 April, 2023

And The Australian’s media writer took to Sky News to warn:

SOPHIE ELSWORTH: This could open up a giant can of worms and be very problematic for the media industry because it could suppress stories that people don’t want written about them …

– Credlin, Sky News Australia, 11 April, 2023

Tonight, we’re going to see what it might mean for the media if the changes go ahead. 

And ask if stories like those on Lara Bingle, Rebel Wilson, Kate Ritchie and the limo driver would be publishable in future.

And we’re going to focus on one key change, urged by privacy advocates, which would allow people to use the courts to stop stories being published or to sue for damages when they are. 

Media organisations in Australia’s Right to Know Coalition, which includes the ABC, told the Privacy Review that this will have:

… a detrimental impact on freedom of expression and freedom … of the media and will undermine news reporting.

– Australia’s Right to Know Coalition submission, 25 January, 2022

And if you look at what’s happened in the UK, you can see why they might be concerned.

Because the UK courts have allowed Russian oligarchs and other mega-rich to spend millions on defamation and privacy actions that muzzle the media and prevent exposure. 

In January 2022, campaigning Conservative MP David Davis told the House of Commons:

DAVID DAVIS: These people use our justice system to threaten, intimidate and put the fear of God into British journalists, citizens, officials and media organisations. What results is injustice, intimidation, suppression of free speech, crushing of a free press, bullying and bankruptcy. 

– Lawfare and UK Court System, UK Parliament, 20 January, 2022

And he went on to brand it: 

DAVID DAVIS: … lawfare …

– Lawfare and UK Court System, UK Parliament, 20 January, 2022

Mostly, this ‘lawfare’ relies on defamation laws. But the UK’s privacy laws are proving increasingly popular, because they don’t require plaintiffs to prove that what’s being said about them is untrue.

And, rightly or wrongly, this has limited what the media can report.

In 2018, for example, singer Cliff Richard won a case against the BBC after it broadcast live pictures of police raiding his home during an investigation into an alleged historical sex offence against a 16-year-old boy. 

Richard, who was cleared by police and never charged, sued for invasion of privacy and was awarded substantial damages. 

And in 2022, a US executive in a big multinational company won a landmark case against Bloomberg, which had reported that the man was being investigated by police for corruption.

Bloomberg’s story was true, yet it still lost the privacy case.

And as a result, it’s now almost impossible for the UK media to name suspects in police investigations, even though this can prompt new witnesses to come forward. 

And way back in 2004, in the case that began it all, model Naomi Campbell successfully sued the Daily Mirror for publishing photos of her emerging from a Narcotics Anonymous meeting in London.

The Mirror claimed the photos were evidence she had lied to the public in swearing she had never used drugs.  

Surely a reason to allow the story. But not according to the courts, which ruled that in attending the meeting Campbell had a reasonable expectation of privacy.

So, does Australia’s Privacy Act Review propose a similar right to sue? Answer yes, adopting a recommendation from the Australian Law Reform Commission in cases of:

… intrusion upon the plaintiff’s seclusion or private affairs (including by unlawful surveillance); or 

… misuse or disclosure of private information about the plaintiff (whether true or not).

– Australian Law Reform Commission, 27 March, 2014

Any invasion of privacy would need to be serious to be actionable, and the victim would have to show the invasion was reckless and intentional. 

Plaintiffs would also have to prove that the public interest in protecting their privacy outweighed the public interest in the media’s freedom of expression.

So, are those protections enough to reassure the media? No, they are not.  

Justin Quill, who has fought many a defamation action for News Corp, told Media Watch: 

A tort of privacy might make celebrities and billionaires sitting on their yachts more comfortable, but at what cost to investigative journalism, free speech and the public’s right to know? It will likely make dodgy businessmen and women and politicians feel safer as well.

– Email, Justin Quill, Partner, Thomson Geer, 14 April, 2023

But Dr Michael Douglas from the University of WA Law School is adamant that such fears are exaggerated, telling us: 

The media’s recent coverage of itself with respect to this reform is predictably hysterical.

The introduction of a statutory tort for serious invasions of privacy is long overdue. Experts have been calling for it for years. Media voices are worried about it because it means some will be held accountable for dodginess they might currently get away with.

– Email, Dr Michael Douglas, UWA Law School, 12 April, 2023

And Professor Barbara McDonald who ran a 2014 inquiry into breaches of privacy, and is one of the people driving the changes, agreed, arguing there would be:

… an in-built up-front protection of freedom of speech and the freedom of the media to investigate and report on matters of public interest. 

– Email, Professor Barbara McDonald, Sydney Law School, 14 April, 2023

And she adds that where someone is seeking an injunction to stop publication, it’s proposed that: 

… a court must have particular regard to freedom of expression and any other matters of public interest.

– Email, Professor Barbara McDonald, Sydney Law School, 14 April, 2023

So, what might it all mean for readers and viewers? 

We asked our three experts which of the celebrity stories we saw at the start could be hit with a privacy action? 

Lara Bingle’s shower pics? Answer: yes.

Rebel Wilson’s relationship? Yes again.

Kate Ritchie’s rehab? Yes again.

And the COVID limo driver too could seek damages from the media. 

And all would have a chance of success.   

Fair enough, some would say. Others that celebrities deserve it. 

But what about this famous front page from 2018?


Deputy PM expecting a baby with former staffer

– Daily Telegraph, 7 February, 2018

Barnaby Joyce might not succeed, the experts reckon, because he is a public figure and a politician with no reasonable expectation of privacy. But his now-wife might have had a claim. So that too may have been off limits.

And who knows what the courts would decide on stories like these: Tim Paine’s sexting scandal which cost him his job as Australian cricket captain; the ISIS brides and their kids, snapped by a news crew, having a meal at McDonalds; and any of a number of toilet dramas — like this one — involving highly-paid footy stars. 

And that’s not all. We asked Professor McDonald if other sorts of stories could be caught. She said:

Yes — close up photos of grieving family members, for a start. The pictures and footage of a drunk woman who is picked up by police to be taken home — as I saw recently. These are ordinary people who are just as entitled to privacy as any celebrity.

– Email, Professor Barbara McDonald, Sydney Law School, 14 April, 2023

That would have the capacity to affect multiple stories. Like the media’s Melbourne Cup coverage, for example, where colour features like this are a Daily Mail and TV staple. 

Giving those people the chance to sue, and the same to random people in footy crowds, would be a massive headache for the media. Justin Quill says the idea is ‘nuts’. And it could tie the media up in the courts forever. 

The Right to Know Coalition, meanwhile, argues that the media face enough restrictions on reporting already, including on:

… matters involving children, family law matters, adoptions, coronial inquiries, sexual offences, domestic violence, jurors, communication with prisoners and other detained persons, and security matters including national security.

– Australia’s Right to Know submission, 25 January, 2022

The media also has to contend with surveillance and listening devices legislation, non-publication and suppression orders, and common law actions for: 

… trespass; nuisance; breach of confidence; defamation law; malicious falsehood; and contempt. 

– Australia’s Right to Know submission, 25 January, 2022

All in all, it is quite a list. And in a country where the courts’ strict interpretation of defamation law is already a nightmare for the press, do we really want to give judges more power to rule out what we can read?  

Short answer — in my opinion — surely not.

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