The story provides:

The facts in Giller v Procopets and what Mr Trevail did are analogous. In Giller all the parties knew a video was being made.  Here Trevail’s former partner did not know that a video was being made.  She may have vaguely suspected.

Under the principles in Giller a breach of privacy in this situation may be sustainable.  There was a relationship of confidence and it was breached.  As the law currently stands it is one of the few fact situations where a claim for a breach of privacy is enforceable.  If there was a stand alone tort of privacy the issue would not be establishing a duty of confidence then determining whether there is a breach and then establishing damages.

Of course Trevail’s problems are a little greater than a breach of confidence action.  There may be a claim

The report provides:

Greens leader Bob Brown has accused Federal Resources Minister Martin Ferguson of turning Australia into a police state, after reports he pushed for increased surveillance of environmental activists.

A report in Fairfax newspapers details documents, obtained under Freedom of Information laws, that show Mr Ferguson requested additional monitoring of anti-coal mining groups and other environmental groups.

Senator Brown claims coal and fossil fuel companies pressured Mr Ferguson into having the federal police spy on environment groups who protest against energy companies.

Senator Brown says tens of thousands of dollars of taxpayers’ money is being spent having private contractors monitor activists.

“That paying of private corporations to spy on community groups is an abuse of taxpayers’ money,” he said.

“Martin Ferguson should never have been allowed to promote that and it should be stopped.

“The Attorney-General, if not the Prime Minister, should see that it stops immediately.”

A spokeswoman for Mr Ferguson says governments are concerned with maintaining energy security.

She says this includes maintaining the rule of law and energy supply, where issues-motivated groups seek to engage in unlawful activity.

The Victorian government came to legal grief when its organisation shared data with private security firms who were monitoring the desalination protestors at Wonthagi. That resulted in an action in VCAT under the Information Privacy Act. If the Commonwealth Government provides information covered by the Privacy Act to private security officers it may find itself in the same problem as the Victorian authorities.  The comparison is that the redress offered under the Commonwealth structure is far less effective than the Victorian processes.

FACTS

In October 2008, the complainant lodged a complaint with the Office of the Privacy Commissioner against the Club under s 36 of the Act alleging that:

• having been a member of the Club since 1997, on 28 September 2007, the Club disclosed the complainant’s full membership details, and player activity statements about their use of the Club’s gaming machines, for the periods July–August 2002 and January–June 2003. This information was provided to the complainant’s ex-partner
• the complainant learned of the disclosure in late July 2008
• the Club gave the personal information to the complainant’s ex-partner in breach of the Act.

The complainant sought, [4], a declaration in the sum of $19,483.90 in compensation for economic loss and an unspecified amount for non-economic loss, as well as punitive damages.  The Club admitted, at [5], it disclosed the complainant’s personal information in breach of the Act but submitted that any damages awarded for non-economic loss should be minimal, that  the complainant provided insufficient evidence of economic loss and there was no scope for awarding punitive damages under the Act.

The process taken in investigating the complaint is set out at [12] providing:

• On 28 October 2008, the Assistant Privacy Commissioner opened an investigation into the allegations pursuant to s 40(1) of the Privacy Act.
• Written information and evidence supplied by both the Club and the complainant was considered.
• The Club and the complainant were provided with the opportunity to respond to the OAIC’s preliminary view on the complaint dated 15 January 2009, which found that the Club had complied with NPP 2.1(g).
• In response to the OAIC’s preliminary view, additional written information and evidence was supplied by both parties.
• Based on this additional information and evidence the OAIC reviewed the preliminary view and moved to conciliation.
• The parties were unable to achieve a mutually agreeable outcome through conciliation and I decided to move to a determination.
• Both parties were provided with the opportunity to provide written and oral submissions pursuant to s 43(5) of the Privacy Act.
• A hearing was held on 20 October 2011 for both parties to make oral submissions.

THE DECISION

The Commissioner undertook an analysis of the operation of the NPP under the Act. The NPPs contained in schedule 3 of the Privacy Act outline standards for ‘organisations’ handling personal information. The relevant NPP was 2.1, see [9].

THe Commissioner made the following findings:

1. The Club is an ‘organisation’ for the purposes of the Privacy Act  and therefore obliged to comply with the NPPs [14];
2. The Club received a letter from the complainant’s ex-partner dated 17 August 2007, which attached a copy of a subpoena issued by the Federal Magistrates Court in family law proceedings involving the complainant and their ex-partner. The subpoena directed to ‘The Proper Officer – Gaming Section, Wentworthville Leagues Club’ was dated 10 November 2005 and required the Club to provide to the Court by 28 November 2005  “All gambling records, or records of transactions linked to any gambling cards related to or held in the name of [complainant's name, address and date of birth] or the [complainant's company].” [15];
3. In September 2007 a manager at the Club provided computer printouts of information about the complainant. Those documents were a printout of the complainant’s full membership details,  bonus point activity statements for the periods July–August 2002 and January–June 2003, the complainant’s total turnover and winnings and the complainant’s then balance with the Club [17];
4. The Club did not present the documents to the Court but rather directly to the complainant’s ex-partner and the subpoena required the Club to provide these documents to the Court by 28 November 2005 [18]. Notwithstanding acknowledging that the disclosure was an interference with the complainant’s privacy the Club initially argued it made the disclosure in ‘good faith’ in seeking to comply with a Court subpoena;

At [20] the Commissioner was satisfied that the disclosure was not authorised under law as the disclosure was not in accordance with the requirements of the subpoena. As such the disclosure was an interference with the complainant’s privacy.

In exercising his  discretion under s 52(1)(b)(iii) and 52(1A) of the  Act to award compensation for ‘any loss or damage suffered by reason of’ the interference with privacy the Commissioner had regard, at [21] – [22], to the principles set out by the Administrative Appeals Tribunal  in Rummery and Federal Privacy Commissioner:

(a) where a complaint is substantiated and loss or damage is suffered, the legislation contemplates some form of redress in the ordinary course

(b) awards should be restrained but not minimal

(c) in measuring compensation the principles of damages applied in tort law will assist, although the ultimate guide is the words of the statute

(d) in an appropriate case, aggravated damages may be awarded

(e) compensation should be assessed having regard to the complainant’s reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances.

and at [23]

… not go so far as deciding that we must award compensation once a loss is established. However, we are of the view that once loss is proved, there would need to be good reason shown to the Tribunal as to why compensation for that loss should not be awarded

Non Economic Loss

The complainant claims, at [25] – [27] that the disclosure of personal information caused psychological and physical harm because the complainant’s ex-partner showed the complainant’s personal information to a range of people including their friends, family, previous neighbours, parents of children’s friends and work colleagues. The complainant provided medical certificates, a report from a social worker,  a psychologist’s report and statutory declarations from family members in support of the claim for non-economic loss, [27].

At [29], the Commissioner found the medical certificate showed the complainant suffered from anxiety, panic attacks and physical symptoms after they became aware of the disclosure of their personal information. After considering the medical evidence the Commissioner, at [34], accepted the medical evidence but not the social worker’s report and found that the statements from family did not add any weight. As a consequence he reached the conclusion that the disclosure of the complainant’s gambling records caused non-economic loss to the complainant but that a proportion of the medical symptoms were not caused by the disclosure because of the complainant’s dispute with the ex-partner over property settlement, child support and child custody and pre existing issues [35] – [37] .

The Commissioner found the complainant was entitled to $7500 in non-economic loss [41].

Economic loss

In the claim for economic loss an element claimed, at [45], was that the complainant’s employer completed an annual review of the complainant’s contract in January 2009, around six months after the complainant became aware of the disclosure and the employer reduced the complainant’s share of company profits in the review. The complainant claimed this was due to the Club’s breach of privacy. The Commissioner did not give strong weight to the employer’s letter stating that the ‘privacy dispute had a detrimental effect’ on the complainant’s performance given it was written more than two and half years after the review and the author admits he was ‘unaware of the nature of the dispute’ [46]. The Commissioner was not satisfied that the complainant suffered economic loss by reason of the interference with their privacy, [49] .

The Commissioner found that under Section 52(1)(iii) a declaration that a person is entitled to ‘compensation’ for any loss or damages suffered as a result of the breach of the complainant’s privacy but punitive damages are not compensatory in nature, [50].   Aggravated damages are awardable under s 52 where the respondent behaved ‘high-handedly, maliciously, insultingly or oppressively in committing the act of discrimination, [51].  The Commissioner accepted the respondent’s evidence that its employee disclosed the gambling records to the ex-partner after obtaining a letter and an attached subpoena from the complainant.  He did not found that conduct is high-handed, malicious, insulting or oppressive [54].  At [56] the Commissioner did not  consider that it is appropriate to award the complainant aggravated damages.

Issues

The award of  $7500 awarded for non-economic loss is quite modest.  The Commissioner’s approach in rejecting an  award of aggravated damages may not be the approach taken by courts considering a similar fact situation.  Providing documents to a third party rather than complying with the terms of a subpoena is a matter that courts take very seriously and action which often attracts censure.  It may have been an administrative mistake but it is a very significant one and one that borders on recklessnes and high handed behaviour, particularly of a body which has resources to obtain legal advice.

What should be noted is that the  the ex-partner was not subject to any action. That person was, according to the determination, a prime mover in spreading the material obtained improperly.  As the law currently stands the Privacy Act does not apply to that person and there is no statutory cause of action available to the complainant.  Based on the disclosed facts it is difficult to see how the complainant could commence a breach of confidence action, relying upon the principles set out in Giller v Procopets, against the ex partner.

This appears to be the 9th determination ever made by the Commonwealth Privacy Commissioner.  The most recent previous determination was made on 19 April 2004.

The Sydney Morning Herald reported on the determination here, almost a month after the fact.

Many thanks to Warwick Rothnie for notification.

The media release provides:

The Victorian Privacy Commissioner, Helen Versey, today released the third edition of the Guidelines to the Information Privacy Principles in the Victorian Information Privacy Act 2000.

Writing in the introduction, Ms Versey says “Five years has passed since the second edition of the Guidelines was published. Technology has continued to develop at an ever-increasing pace allowing for more and more gathering, matching and disseminating of information about individuals.”

“Black Saturday happened in Victoria on 7 February 2009, requiring extensive data sharing in order to respond effectively to that emergency. These, and other events, have all added to the experience of Privacy Victoria, and the Victorian public sector, in interpreting and applying the Information Privacy Principles. This experience has been drawn upon for this latest edition, as well as the experience of other jurisdictions where similar principles are applied,” Ms Versey explains.

“I hope this updated version informs and helps not only the Victorian public sector but others, both nationally and internationally involved in interpreting and applying these and similar principles and contributes in a small way to some consistency of approach. However, it must be remembered that these are only guidelines. They are not legally binding,” says Ms Versey.

Here is the report in toto:

FACEBOOK is facing its most serious privacy issue to date, with claims that it is collecting user’s information after they have logged out.

The issue, raised by Australian born blogger Nik Cubrilovic, has sparked a major privacy debate on the internet overnight, and follows Cubrilovic’s demonstration on his blog of Facebook keeping its browser cookies active after a user has logged out of the social network.

“Logging out of Facebook only de-authorizes your browser from the web application, a number of cookies (including your account number) are still sent along to all requests to facebook.com,” Cubrilovic’s blog says.

“Even if you are logged out, Facebook still knows and can track every page you visit. The only solution is to delete every Facebook cookie in your browser, or to use a separate browser for Facebook interactions.”

In his blog, Cubrilovic demonstrates that a cookie with his Facebook ID is still active, even when he is logged out.

Facebook today has confirmed that its Browser cookies exist after a user logs out.

However on the Wall Street Journal blog Digits, Facebook this morning has defended its practice, saying that the collection was part of a system to prevent improper logins and that the information is quickly deleted.

Facebook told the Digits blog that the data was sent because of the way the “Like” button system was set up.

“Any cookies that are associated with Facebook.com will automatically get sent when you view a “Like” button.

“The onus is on us is to take all the data and scrub it,” Facebook director of engineering Arturo Bejar told the blog.

“What really matters is what we say as a company and back it up.”

A Facebook spokesman said “no information we receive when you see a social plugin is used to target ads.”

Mr Bejar told the blog Facebook was looking at ways to avoid sending the data altogether but that it will “take a while.”

Facebook also is under fire over a claim that its new “social apps” are capable of posting what a user is reading on the web, without a user explicitly ‘liking’ the link or posting it.

“Be forewarned though, with these apps you’re automatically sending anything you read into your Facebook news feed,” the ReadWriteWeb blog said.

“No ‘read’ button. No clicking a ‘like’ or ‘recommend’ button.

“As soon as you click through to an article you are deemed to have ‘read’ it and all of your Facebook friends and subscribers will hear about it.

“That could potentially cause you embarrassment and it will certainly add greatly to the noise of your Facebook experience,” the blog said.

The Age also covers much the same topic, in a feed from the LA Times  with:

??Facebook has denied that it tracks its users’ web surfing even when they are logged out, saying it only uses tracking cookies to personalise content and to make the site more secure.

Australian technologist Nik Cubrilovic this week accused Facebook of using cookies to track users when they are logged off from the service.

Facebook engineer Gregg Stefancik denied that the company tracked users in a comment on Cubrilovic’s post. Stefancik did admit that Facebook alters – but does not delete – cookies when users log out. But he says Facebook does that as a safety measure, and does not use the cookies to track users or sell their personal information.

In a written statement, Facebook said: “Facebook does not track users across the web. Instead, we use cookies on social plug-ins to personalise content (e.g. show you what your friends liked), to help maintain and improve what we do (e.g. measure click-through rate), or for safety and security (e.g. keeping underage kids from trying to sign up with a different age). No information we receive when you see a social plug-in is used to target ads, we delete or anonymise this information within 90 days, and we never sell your information.”

Logged-out cookies are used to protect consumers, Facebook said. For example, Facebook says the logged-out cookies are used to identify spammers and phishers, detect when an unauthorised person is trying to access a user’s account, help users regain access to an account when it’s been hacked and disable registration for underage users who try to re-register with a different birthdate.

But some still believe that Facebook has murdered privacy.

“Facebook has finally done it,” Mashable’s Ben Parr wrote. “It’s just a few updates away now from euthanising the concept of privacy.”

Last week Facebook unveiled its dramatic redesign of profiles, a time line that charts in chronological order all the information users have shared on the service. Facebook also showed off new third-party applications that – when enabled – automatically share every action users take: every song they listen to, article they read and video they watch (not to mention every meal they cook and every jogging route they follow).

Facebook Chief Executive Mark Zuckerberg calls it “frictionless sharing.” That kind of sharing is designed to get users to stick around even longer (something that Facebook already does so well that it’s got Google and other internet players plenty worried).

“We’re at the point of no return,” Parr wrote. “Facebook’s passive sharing will change how we live our lives. More and more, the things we do in real life will end up as Facebook posts. And while we may be consoled by the fact that most of this stuff is being posted just to our friends, it only takes one friend to share that information with his or her friends to start a viral chain. Sharing with just your friends doesn’t protect your privacy. I know the people at Facebook will disagree and argue that users can control what is shared with whom. But this is simply an illusion that makes us feel better about all the sharing we have done and are about to do. We may not notice the impact on our lives immediately. But it won’t be long until your life is on display for all of your friends to see, and then we’ll all know what Facebook has wrought.”

Not surprisingly, his conclusion is the same one reached by privacy advocates who are calling on US federal regulators to take a hard look at the latest changes that Facebook is rolling out.

Marc Rotenberg, the executive director of the watchdog group Electronic Privacy Information Center, which has led the charge against Facebook, said he is sending a letter to the Federal Trade Commission highlighting his organisation’s concerns, which he says the agency has so far failed to address.

“It’s getting really difficult to evaluate the changes that Facebook makes, and I say that as a privacy professional. I can’t imagine what the typical user goes through,” Rotenberg said. “Users might opt in to what Facebook is planning to do, but Facebook never gives users that option. It just marches forward and users have to go along.”

An agency spokeswoman said the FTC does not discuss investigations unless the subject of an inquiry discloses the investigation.

“Then we can confirm the investigation without providing any details. But Facebook has not done so, so I can neither confirm nor deny that the FTC is investigating Facebook,” Claudia Farrell said in an email.

The latest privacy backlash comes as Facebook prepares for its highly anticipated initial public offering next year. The growing success of what is already the world’s most popular social networking service has led analysts to conclude that it’s essentially building a second internet where it harvests users’ personal data to target advertising.

That has raised the hackles of privacy watchdogs who accuse Facebook of putting profit before users. They say users are being pushed to divulge more about their lives than they feel comfortable.

“This redesign is part of Facebook’s overdrive effort to boost data collection and ad sales prior to its IPO,” said Jeffrey Chester, executive director of the Center for Digital Democracy. “Under the guise of enhancing the ability of its members to express themselves, Facebook is building a super-charged commercial surveillance system that threatens their privacy.”

Tim Whitlock, chief technology officer and co-founder of Brandfeed, says users should think about the consequences now and in the future of sharing information on Facebook.

“Most people understand that sites like Facebook are free to use for a reason. It’s not because Mark Zuckerberg loves you, it’s because Facebook and its peers make money from your data and from your eyeballs. At least I hope people understand that. At the very least I hope that people understand they’re making a trade of some sort and that they’re ultimately in control of this arrangement,” Whitlock wrote.

“Whether this is optimistic or not, if we want to maintain any kind of control over this trade, we need to start thinking beyond what our data is currently used for. We need to start thinking beyond targeted advertising, and wonder what else the information we hand over today might be used for tomorrow.”

As reader Rhonda Stanton, a broker associate with Keller Williams Realty Inc., commented on a blog post last week about Facebook’s push to get its users to share more: “If I wanted the whole world to know what I was doing, I would friend the whole world.

First out of the blocks is Proposed law to award privacy invasions up to $150,000 damages which provides:

CITIZENS claiming their privacy had been invaded would be in line for damages of up to $150,000 without having to prove economic loss under a proposed blueprint for new privacy laws.

But the Gillard government has committed to protecting freedom of expression and public interest reporting if it creates a legal right to sue for serious privacy invasions.

A discussion paper released today examines how a legally-enforceable right to privacy might work.

The paper acknowledges that there could be circumstances in which privacy invasions could be justified in the public interest.

Under one possible model, proposed by the NSW Law Reform Commission, an individual suing a media company for breach of privacy would have to prove their right to privacy outweighed the public interest.

But, under an alternative model put forward by the Victorian Law Reform Commission, the burden of proof would lie with the media company defending such an action.

The paper canvasses a possible cap on damages for privacy breaches, noting the NSW Law Reform Commission suggested a maximum payout for non-economic loss of $150,000.

But the Victorian Law Reform Commission argued that given “the modest sums likely to be awarded in cases of this nature … a statutory cap on damages is unnecessary”.

Privacy Minister Brendan O’Connor said a right to damages for privacy breaches could be quashed if was found to be in the public interest.

“The government believes that if there were to be a statutory cause of action for serious invasions of privacy, then it would have to have regard to freedom of expression,” he said.

“If it is argued that a person’s privacy has been invaded but it is in the public interest, then that would vitiate, I would say, a cause of action if a cause of action were to be implemented by the government.”

The paper’s release follows the government’s decision to revisit, in the wake of the UK hacking scandal, the Australian Law Reform Commission’s 2008 call for protection against serious invasions of privacy.

Submissions on the discussion paper close on November 4.

And the debate begins…

PATIENT privacy has been compromised in the federal government’s bid to control health spending, with a key agency found to have illegally merged data from Medicare and the Pharmaceutical Benefits Scheme.

In a case likely to fuel privacy concerns over planned electronic health records, the embattled Professional Services Review has been ordered to add computer system and practice changes to a growing list of reforms.

The PSR investigates alleged doctor rorts, but a wave of legal challenges has this year forced 39 potential cases to be abandoned and left about 50 completed cases at risk of collapse. The government, which is preparing an appeal to the High Court, has ordered an independent review and a parliamentary committee is also examining the PSR.

Privacy Commissioner Timothy Pilgrim told The Australian that after a 14-month investigation the PSR was found to have breached the Privacy Act with regard to its handling of patient information.

“I found that PBS and MBS (Medicare Benefits Schedule) claims information were being stored in the same database and this was in contravention of PSR’s obligations under the privacy guidelines for Medicare benefits and Pharmaceutical benefits programs,” Mr Pilgrim said.

Mr Pilgrim’s office has been working with PSR to resolve the situation and it has been agreed the data will be stored separately and information technology policies and procedures updated.

Concerns had been raised with the Privacy Commissioner and, more recently, the committee about the the review’s handling of doctors’ patient files. Mr Pilgrim found no evidence of wrongdoing.

“As part of my investigation I also examined whether the PSR had reasonable security safeguards in place to protect the information it holds from unauthorised access, use, modification or disclosure,” he said. “I am satisfied that the PSR has appropriate security safeguards in place.”

The PSR has polarised the medical community. The committee has heard calls for it to be more transparent and accountable and to show procedural fairness, while an advocate for one of the doctors targeted by the review has told of the personal impact it can have.

Lawyer Alan Williamson was a friend of Victorian general practitioner Peter Tisdall and represented him in various stoushes with the PSR until the 71-year-old died in June. The doctor had served the rural town of Kyabram for 46 years and was one of the longest-servicing GPs in Australia.

Mr Williamson told the committee Dr Tisdall met a community need, but the PSR was more interested in dollars than patients.

“Dr Tisdall was subjected to considerable stress and incurred substantial expense as a result of referrals (from Medicare to the PSR) that continued for more than 12 years,” Mr Williamson wrote.

“He felt frustrated and powerless because he was unable to convince Medicare that his only purpose in seeing a large number of patients was to satisfy a huge demand for medical services from the residents of the community in which he lived.

“The cost to his personal life and his family was immense. It may even have caused his premature death.”

The joint press release states:

The Gillard Government today invited members of the public and businesses to have their say on the development of Australia’s first ever Cyber White Paper.

The Government released a public discussion paper as part of the development of the Cyber White Paper, which invites submissions on a range of issues regarding the importance of cyberspace to Australia’s social well-being, economic prosperity and broader national interests.

The White Paper will look at how Governments, businesses and individuals can realise the full benefits of cyberspace while at the same time ensuring current and emerging risks can be managed.

The digital world is transforming the way governments and businesses operate and the way Australians connect to each other and the world.

The Cyber White Paper will cover a broad range of areas including consumer protection, cyber safety, cyber crime, cyber security and cyber defence.

With the rollout of the NBN gaining pace, Australians will become even more connected with the benefits of cyberspace.

Given the importance of the internet to Australia’s economic prosperity, we must ensure people continue to embrace the tremendous opportunities cyberspace offers.

Globally, cybercrime has already overtaken the drug trade as the most profitable form of all crimes.

Cyberspace is a shared domain and no single nation can address the security challenges alone.

The White Paper will allow us to provide an even stronger input into international efforts to fight cybercrime and ensure cyber security across borders.

The Department of the Prime Minister and Cabinet is leading development of the Cyber White Paper, which is expected to be released in the first half of 2012.

Let the reading and writing begin.

It is vital that there be a sensible debate on a right to privacy, for against or in between.  There is very mixed coverage of the privacy issue today.

Peter Van Onsolen’s Political parties face hard questions on how they use our personal data in the Australian is good and highlights a clear anomaly in the privacy laws. It is a good article relating to the exemptions political parties have from the Privacy Act.  It’s relationship with a statutory duty of privacy is at best tenuous.  But it is a legitimate issue.

The report Reform push ‘not based on complaints about media’ makes clear that any statutory right to privacy is not media focused. It says in part:

A SENIOR officer at the Australian Law Reform Commission has insisted its call for a legal right to privacy was not based on any “groundswell” of complaints about the media

So what?  Sometimes law reform arises out of an incident which highlights a discrepancy or gap in the law, sometimes it is a groundswell and other times there is a general review and an amendment is proposed.

The NSW acting Privacy Commissioner John McAteer has also warned the focus of the debate about privacy should not be solely on the media in the wake of the News of the World phone hacking scandal in Britain.

Excellent point and one that is obvious on its face.

While Mr O’Connor and Julia Gillard discussed the issue within the context of the events in Britain, ALRC senior legal officer Bruce Alston, who worked on the report, told The Australian yesterday the recommendation to establish a legal right to privacy was not just about the media.

“In recommending a statutory cause of action for an invasion of privacy, we were not responding to any groundswell of complaints against the media,” he said.

“And, in fact, we took pains to emphasis the media were not a particular target for the recommended course of action for a serious invasion of privacy.”

Mr McAteer cautioned against any discussion on privacy being solely focused on the media and said the “true importance of the debate” was that it had highlighted gaps in the law.

“The current debate has focused largely on allegations of breaches of individuals’ privacy by the media, and ensuing comments that such laws might ‘gag’ or limit the freedom of the press,” he said.

“However, the Law Reform Commission’s recommendations were not limited to actions against the media.”

Mr McAteer said that invasion of privacy tended to occur in instances such as neighbours spying on neighbours or people setting up surveillance cameras on buildings that overlooked public places.

He said privacy breaches often related to matters between citizens and government or customers and businesses.

“Most of the privacy-related complaints arise from an existing relationship between a complainant and the body they are dealing with, whether it be government or private sector,” Mr McAteer said.

A very sensible injection into the debate.

In the last annual report of the Office of the Privacy Commissioner, there were 216 “telephone inquiries” about theatres, sports and the media industry. This compared with 1501 calls about “health service providers”, 1011 about the finance sector, 893 about debt collectors and 240 about legal and accounting services.

It was unclear from the 2009-10 report, the last one done by the commissioner, how many complaints about the media were investigated.

Mr O’Connor this week insisted the Gillard government’s consideration of new privacy laws was not targeted at the media, but at protecting privacy across the community.

He described the Australian media as “a professional industry” and has not ruled out ending an exemption from privacy laws that extends to political parties.

Again, quite sensible. But not all coverage has been as considered.

It seems Michael Stutchbury was just warming to the task of going beserker on a possible tort of privacy when he appeared on Insiders because his  Lawsuits no way to defend privacy or free speech shows there is plenty of breath in his lungs on the subject.  Pity really.  An article long on assertion and chicken little predictions and short on analysis, legal or otherwise. It adds nothing particularly useful to the debate.  It says:

OK. That speaks for itself.  And here I was thinking re regulation was an extremist left agenda.  Proves that the end of the extreme right is the beginning of the extreme left, or visa versa.  As for a more litigious society, well any new enforceable rights sort of does that on his world view I suspect.

Her Justice Minister Brendan O’Connor has been directed to respond to the News of the World phone hacking scandal by making it easier for Australians to sue media companies for invasions of privacy. Such journalistic practice already is illegal in Britain and Australia. And there is no evidence of such Fleet Street “red top” outrages here.

Of course the focus of any tort of privacy extends well beyond a person suing a media organisation.  As the “Reform push” article makes clear above many instances that would involve a breach of privacy is the actions of individuals upon other individuals.  Such as the fact situation in Giller v Procopets.

But O’Connor claims that “mass breaches” here highlight that Australia has “no general right to privacy” and thus “no certainty for anyone wanting to sue for a breach of privacy”.

Assume the quote is accurate the fact there is no general right to privacy is accurate.  And there is no certainty to sue for a breach of privacy.  In fact such a claim is liable to lose at the moment.  The leading authority, Giller, is founded in confidence.

So the left-wing junior minister from Victoria has dusted off a 2008 Australian Law Reform Commission privacy report which, from page 2535 of its third volume, argues for an extremist “tort of invasion of privacy”.

Where a minister comes from, how senior or junior he is and what faction he belongs to is quite irrelevant to any debate.  As is the page number of the recommendation.  As for an extremist “tort of invasion of privacy” well he is in small company in that description of what is proposed.  Extremist, whatever that means in any legal or practical sense. it is not.

Yet, as the ALRC has argued previously, the concept of a general tort of privacy is vague and nebulous, a concern repeated a decade ago by then High Court chief justice Murray Gleeson. The Law Council of Australia more recently has backed the existing “appropriate and adequate recourse to individuals who consider that a media organisation has interfered with their privacy”.

It is hardly controversial that there has been considerable debate about privacy and controversy about defining in sharp terms the bounds of privacy.  Presumably Stutchbury is quoting, or more accurately extreme paraphrasing or even more accurately verballing Gleeson CJ in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1 (15 November 2001) . His Honours’ consideration of the issue, at [27] – [55], is much more involved and nuanced than Stutchbury makes out.  What Stutchbury fails to mention is that the judgment of Hayne and Gummow JJ, after a very detailed analysis, did not rule out a right of privacy particularly as their honours stated, at [132] “For these reasons, Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, “free from the prying eyes, ears and publications of others”. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome. Nor, as already has been pointed out, should the decision in Victoria Park.”  Gauldron J agreed with their honours’ judgment. Kirby J postponed the question of whether there was a need for a tort of privacy while Callinan J undertook a detailed analysis of the issue and made the following comment at paragraph 332, “Any principles for an Australian tort of privacy would need to be worked out on a case by case basis in a distinctly Australian context.”  Stutchbury’s very selective quoting of Gleeson CJ’s position absent the commentary from other justices is at best sloppy journalism. All the justices undertook a detailed analysis of the issues.  Gleeson CJ was the most conservative in approach but his comments were not as dismissive as Stutchbury suggests.  The court did not shut out a tort of privacy or other form of privacy protection.  It said this was not the proper vehicle.  What is significant is that justices Gummow and Hayne, the only justices currently on the bench who were involved in ABC v Lenah Game Meats, left the door open for future consideration of this issue.

But to understand the issue, it first has to be removed from the grip of the lawyers, particularly those with a rights agenda or a political grudge. For the economic issue is that digital technology has slashed the cost of gathering, analysing and distributing information, including about people.

Far from wanting people to understand the issue Stutchbury just goes about demonising it and those whose views differ from his own.  What is this “grip of lawyers” nonsense and what “rights agenda” does he refer to and who has a political grudge. A very strange cabal. The second sentence is quite true and an issue that highlights privacy concerns.

This has raised a host of issues from ensuring that banks and hospitals keep personal financial and health records confidential, to closed circuit cameras following people’s every move, to alarm that sex partners could post explicit video clips on YouTube.

But it still has been an overwhelmingly good thing, providing cheaper access to services and allowing people to bypass traditional media to communicate directly among themselves.

It has also raised a range of legitimate concerns and worrying outcomes.  For example it has led to an easier misuse of data and abuse of social networking sites.

The new digital technology also reduces the gatekeeper role of the traditional media: anything seems to go in social media. Yet, exploiting the NOTW scandal, Labor’s privacy tort is aimed at traditional media companies because they are a political target and because they still have deeper pockets than some random blogger or hacker.

First it is not Labor’s privacy tort.  The ALRC commenced its inquiry into privacy during the time of the Howard Government.  Secondly a statutory tort has been suggested over the years, during both Liberal and Labor administrations.  While media companies have more resources than bloggers or hackers those issues are not at the forefront of all or even most litigants minds when exercising their rights on matters that go to their privacy.  In Giller v Procopets money was hardly the main motive.  Similarly fights between neighbours over trespass and nuisance are hardly fights between moghuls. Asserting conspiracy theories is just foolish.  And childish.

The legal trick is to conflate the various digital concerns into a new form of property right: a general tort against invasion of personal privacy akin to someone breaking into your property or a home invasion. Conventional private property rights are a foundation of a democratic market economy. But a property right over individual privacy necessarily intrudes into a more basic foundation of an open society: free speech.

This analysis is incoherent at best.  What is the legal trick?  A cause of action is not a property right.  It is just wrong legally.  As polemics it is extreme and nonsensical.  Of course any debate over rights to privacy must involve a consideration of freedom of speech and to ensure that the former does not shut down the latter. But this is hardly news.  There is a right to privacy in most common law jurisdictions, New Zealand and the United States for example, and a right to freedom speech with a functioning media.

O’Connor fudges around this. And sensible people, such as my old mate Barrie Cassidy on the ABC’s Insiders on Sunday, find it hard to understand why anyone could caution against protecting people’s privacy.

Stutchbury is still smarting from the exchange with Barrie Cassidy where Cassidy definitely had Stutchbury spluttering, well and truly cornered. He came out very much second best.

The objection is that elevating privacy to a fundamental human right is designed to get around the problem that protecting it is not costless. It aims to avoid having to measure the extent of the actual problem and to figure out the most effective ways to deal with it.

Proposing a statutory right to privacy as “elevating privacy to a fundamental human right” is a debating device that goes nowhere in the debate.  Apart from that it is just wrong.  It may be a cause of action but anything beyond that is a misrepresentation.  The tenor is of some slight of hand involved.  There is not.  The question of cost, whatever that means, or intrusion is a factor that needs to be considered when drafting a Bill, which has not been produced as yet.

Hence, the Victorian lawyers’ guild argues against “any selective analysis of the costs and benefits” of the state’s charter of human rights now being reviewed by the Baillieu government.

Now Stutchbury drags part of a submission from a review of a charter of human rights into a debate for a charter of human rights.  He is making up economic theory as he goes along.

Yet getting a handle on who actually benefits, by how much and at what cost to others is central to good regulation.

Now we slide into economic theory.  There is always going to be a balancing act on the level of protection and the defences offered. A cause of action is not a form of economic regulation.  To suggest it is is to mix and confuse disciplines.

There is ample evidence of the costs of allowing such open-ended rights to take root in the legal system.

Open ended rights??? The ALRC report proposes defences.

Before being reined in over the past decade, allowing people to sue for injury to their reputation or even honour became an Australian legal absurdity that transferred money from deep-pocketed media companies to politicians and defamation lawyers.

It seems that there is an allusion to reforms to defamation law reform and a successful uniform set of laws across all jurisdictions.  And it has been quite a good result.  But what Stutchbury fails to mention is that there remains a right to sue for defamation. There was never any suggestion not to do so.  How is this an argument against a cause of action for a breach of privacy.

Even judicial officers began to exploit this legal protection racket. Without any proof of actual injury to reputation, damages for mere slights ballooned to way beyond payouts for serious workplace accidents or for common assault.

It would be nice to have some evidence for this assertion.  Perjorative terms help nobody.

Like privacy, people’s reputations are more than their own business. People rely on the reputations of those from whom they buy food, trust with their savings, take medical advice or leave their children to care for. Protecting both reputations and privacy restricts others from being properly informed by the marketplace of free speech.

Reputations are still protected at law.  A person is still entitled to sue for a libel or slander, whether by media or an individual. By that logic there should be no real objection to a right to privacy.  The restriction he refers to is an award of damages if a party is successfully sued for defamation.  The fact remains that media can still report and have done so in the past and will continue to do so in the future.

Again like protecting privacy, it similarly sounds only just that those whose negligence causes injury to others should be made to pay. But not when the lawyer-controlled courts stretch the concept so far that the public liability premiums for a local fete, a surf club sausage sizzle or a local playground become prohibitive or if insurance companies refuse to cover the risks of medical surgery.

There has been tort reform quite a while back.  Fetes continue, playgrounds continue to operate even before tort reform and after.  It is worth looking at the role insurance companies have played in keeping premiums up even when the reforms reduced claims and awards of damages.  Again, this is an argument for proportionality not against pa privacy reform itself.

Just as defamation and negligence torts have been reformed, however, the privacy tort push has gathered momentum with the European human rights agenda, been transmitted to Britain (where it mostly has enriched celebrities) and then transported to Australia via a few activist lower court judges. This has created such uncertainty, argues the ALRC, that a whole new privacy tort needs to be legislated.

There has been a call for privacy law reform long before tort reform.  More importantly it was independent of any tort reform.  The suggestion that a call for a cause of action for breach of privacy correlates with the impact of tort reform is illogical and dishonest analysis. Recommendations for a statutory cause of action for privacy breaches have existed for over 30 years.  The lower court decisions have not been the catalyst for a call for new privacy tort.  That the ALRC refers to those actions is hardly controversial.  But remember the Victorian and New South Wales Law Reform Commissions also recommended statutory causes of action.

The absurdities already extend to defining as private what happens in public spaces. On the weekend, my 77-year-old father went back to the historic North Sydney pool underneath Sydney Harbour Bridge where he swam in schoolboy competitions. He was told he could not photograph the public pool because of privacy concerns of those swimming in it.

I couldn’t agree more with this outrage on this point. The paranoia around swimming pools and where children play is as much to do with hyper sensitivity of modern times as any claim of privacy.  But how is this relevant to the present debate?  The complaint above is made without any statutory right to privacy being available,  It is questionable whether anyone could make such a demand upon any person in that situation as the law currently stands.

Languishing in the polls, the Prime Minister demands that News Corporation’s Australian arm answer unspecified “hard questions” over the NOTW phone hacking scandal. The Greens leader who props up her government, Bob Brown, calls The Australian the “hate media” and pushes for an inquiry into breaking up News Limited.

Communications Minister and Labor factional warlord Stephen Conroy complains that another Murdoch paper, Sydney’s The Daily Telegraph, is inciting “regime change”, inviting the probity concern that media regulation could be influenced by politics.

They may or may not be fair points. I think mixing the complaints about News Corporation with this issue helps nobody. But the issue of a statutory right to privacy has been discussed for years.

Yet Gillard’s privacy tort threatens all the media, not just those Labor seeks to intimidate. Putting the whole media offside is a bizarre strategy for a Prime Minister languishing in the polls and trying to sell a tax she promised never to introduce.

A privacy tort threatens nobody.  It is a cause of action.  To be used by persons whose privacy has been breached by any on, not just media.  The assumption is that it puts the entire media offside.  Barry Cassidy for one, a member of the media, sees it in more benign terms.

All in all Stutchbury’s article is a mish mash of assertion, wild exageration and a truly strange mixing of economic theory with legal principles.  It is poor analysis. It is interesting to see the comments to his on line article are strongly against Stutchbury.

And just in case anyone has missed the Australian’s position on Privacy today’s editorial, ALP out of touch on privacy, puts it all up there in neon lights:

PRIVACY might be a problem for members of the Gillard government — but only in the sense that they need to get out more.

Surely only a cabal of political operatives cloistered in Canberra could deduce that one of the nation’s most pressing issues is privacy legislation and the role of the media.

Its hard to argue that the sudden announcement to issue a discussion paper is influenced by the goings on in the UK.  But a privacy right is not limited to media.

In seeking to justify the surprise move to enshrine a tort of privacy, the hitherto very private Privacy Minister, Brendan O’Connor, has placed great store in a three-year-old report by the Australian Law Reform Commission. But in its 2694 pages, the report makes little more than a passing reference to the government’s agenda. The commission was more interested in raising concerns about how our political parties have ensured that their own computer files, collating secret details about millions of individual voters, are exempted from existing privacy laws. Rather than restricting media rights, the report was attuned to maintaining freedom of speech. So it is clear the report has been seized upon by the government’s spin doctors simply as a way to publicly bolster, or spin, their anti-media crusade.

It is true that the report does report across a whole range of issues and does recommend improvements and reforms which would assist the media.  As for the “governments agenda” this issue has been in the public domain for over 30 years and much longer in other jurisdictions.

Yet as Michael Stutchbury explains on the opposite page, this “rights” agenda must impose costs upon our society, financially and by restricting free speech. It is all the more worrying that the push is coming from a defensive government seeking to stifle criticism. Instead of citing just one example of an Australian problem that needs to be legislated away, the government opportunistically points to a breach by the News of the World, forgetting this occurred on the other side of the planet, where it is illegal, as it is here, already.

Stutchbury’s article is not an explanation of any coherent economic theory.  His explanation of legal theory is not known to me or most lawyers I imagine.  And when the two combine the result is incoherence.

This privacy frolic has the hallmarks of being conjured up by ministerial advisers who have no understanding of the priorities of working families. Instead of focusing on the serious issues confronting government, they barrack for Communications Minister Stephen Conroy as he blames News Limited for the government’s woes. Squealing about media must be easier than self-analysis. While this will strike a chord on ABC radio or in the echo chamber of university students and bored public servants on Twitter, it will not provide the desired distraction for mainstream voters. In the suburbs, people are much more likely to perceive a government losing touch with their priorities, and looking for someone else to blame.

The editorial may have a point about the government complaining about various ministers attack on News Corporation.  But that is not the same as looking at the issue on its merits.  As to what is important to individuals I suspect that they are concerned about their privacy as much as anyone else.  And on occasion they get very concerned, such as with the Australia Card.

In the Australian Chris Merritt slipped into his traditional bellicose stride when dealing with the whiff of any new rights in the offing. He warmed up with Undoing free speech a sop to placate Bob on Friday.  It is more assertion than argument.

THE federal government seems intent on allowing the Greens to destroy Labor’s credentials on free speech.

After permitting the Greens to vandalise the federal shield law for journalists’ sources, the government has decided to embrace the thinking of the Greens on privacy law.

A wild simplification. The interest in greater protections of privacy goes well beyond a political party.  And the interest in this area has been longstanding.

This will have the effect of reversing privacy law reforms that were enacted by Labor state governments just six years ago.

Which ones?

It will also leave federal Labor even further removed from the grand plans for transparency and accountability that were contained in the party’s 2007 election platform.

Pure and utter assertion and just plain wrong.  Having a statutory tort of privacy is not inconsistent with a government transparency and accountability. It does not follow.

In its rush to placate Bob Brown, federal Labor has forgotten that Labor state governments took a completely different position in the last debate over privacy.

Maybe, maybe not.  But so what. If the debate revolves around the proposals by the Australian, Victorian or New South Wales Law Reform recommendations that there be a statutory right of privacy then the trigger for the debate is hardly relevant.

In 2005, when privacy was debated during the push for national defamation laws, every Labor state lined up on the free-speech side of the argument.

This is such a broad overarching generalised comment as to be almost meaningless.

What a pity Julia Gillard and Privacy Minister Brendan O’Connor are prepared to repudiate that proud Labor history. Unless federal Labor returns to its roots and rids itself of the Greens influence, its plans for a statutory privacy tort will brand Labor as the party that wound back free speech. Labor was already struggling on this front. Its 2007 policy promised a new era of open government based on real protection for whistleblowers in the federal public service.

Again polemic over reasoned argument. There is a tort of privacy in the US and that is a jurisdiction that has a far stronger protection of free speech than Australia. Free speech and privacy protections can live side by side.

It’s been a while: where is Labor’s draft legislation?

Fair point.  Very fair.

The same policy invoked the name of convicted whistleblower Allan Kessing as an example of one wrong that needed righting.

For more than a year, O’Connor has had a pardon application from Kessing. For almost six months, O’Connor has known about growing doubts about Kessing’s conviction because evidence was withheld from his defence team.

The lack of action on these key issues had already fed doubts about Labor’s direction. That direction now looks like reverse.

That all sounds reasonable but what, pray tell, does it have to do with a statutory right to privacy.  Sometimes, as in always, it pays to look at the issue of substance rather than political theories.

A privacy tort is clearly aimed at intimidating the media, particularly News Limited, publisher of The Australian, the newspaper Brown loves to hate.

Just wrong.  A privacy tort is not restricted to the media.  And in Giller v Procopets neither parties had any connection with the media.

The effect will be to raise the cost of doing business for the entire media industry. The privacy lobby is dominated by lawyers for a reason: a privacy tort would be a rich vein for lawyers.

What privacy lobby is this.  There are a whole range of groups interested in the subject, the Australian Privacy Foundation, Electronic Frontiers Australia and any number of academics.  Some are lawyers some not. Lawyers tend to be interested in rights issues but don’t necessarily profit financially from advancing rights. They advocate because they believe.  Hardly a novel concept.  As for this rich vein, that is just strange speculation.

It would replace much of the legal work that was lost when the privacy elements in the defamation defence of truth were removed back in 2005.

No.  It is a stand alone tort if implementated as per the ALRC report.  Different issues and different concepts.  What is the basis for this generalised assertion.

Since those changes, the media has known that if it publishes the truth it will be protected from defamation. Before those changes, defamation operated as a quasi-privacy tort. By reversing that, the costs of running a media business will grow. That will raise the barriers to entry and entrench the position of existing media outlets such as The Australian.

A claim for defamation is not the same as any tort of privacy as currently recommended.  Characterising the pre reform defamation actions acting a quasi privacy tort is wrong.  At best it is just a characterisation based on a value judgment, not a legal analysis.  Legally it is simply in error.  Privacy extends beyond publication of a libel or a slander for one thing.

Today’s piece, Privacy plan the ultimate in anti-free speech, media lawyer says, is disappointing as journalism and appalling as legal analysis.  It says:

THE federal  government’s plans for a new way of suing the media for privacy breaches will expose journalists and their employers to unprecedented penalties, including fines or jail for refusing to comply with court orders.

Does the Government actually have a plan?  There is to be a discussion paper and there has been generally favourable comment about a statutory right to privacy by Brendan O’Connor who has kept his views about the specifics to the anodyne.  Perhaps the Merritt is referring to his interpretation of the ALRC Report’s recommendations.

If the government’s plan goes ahead, all media outlets could be forced to publish or broadcast court-ordered corrections and apologies, and hand over some of their profits.

Courts would also be empowered to issue declarations against particular media outlets, stating that they had engaged in serious invasions of privacy.

Again, what plan.  There are light years between a reports recommendations, the exposure draft of any bill, the actual bill that is introduced into Parliament and any resulting legislation.  Assuming of course things progress to that end point.

Media lawyers said that until now no Australian government had ever tried to force these requirements on the media.

And it hasn’t as yet.  But let’s work with the assumption that it will.  The Court’s regularly ordered a party to a civil action before the ACCC to put in an advertisement setting out the nature of the contravention of the Trade Practices Act.  State Superior Courts can make declarations and it is within their very broad exercises of their discretions to make publication orders.  The other point missing in all of this is that any tort of privacy does not apply to media to the exclusion of others.

Justin Quill, of Kelly Hazell Quill, said the plan to force media outlets to publish material with which they disagreed was the equivalent of taking away the media’s right to express its point of view. “It is the ultimate in anti-free speech,” Mr Quill said.

And what plan is Quill referring to?  Again taking what he is saying as correct on its face, there is such a plan, what the orders relate to is a finding by the Court as to a contravention.  That is different to publishing material they disagreed with.  How many advertisements have the press published that conforms with their viewpoints?  Assume the unlikely circumstance where a media corporation is prosecuted by the ACCC for anticompetitive conduct and loses.  One of the orders that the Court is likely to make is a publication order in its paper/radio station/television or whatever form of media it owns.  How is that so controversial and extraordinary.  It is the publication of a finding of by the Court.  It is not requiring the media organisation to change its view.

As well as the new penalties, the government’s plan would cut across the newly enacted federal and NSW shield laws by empowering judges to order the media to “deliver up” documents — potentially exposing confidential sources. “It would mean journalists would potentially be held in contempt for refusing to discloses their sources,” said media lawyer Peter Bartlett, a former chairman of national law firm Minter Ellison.

Again, there is no exposure draft of any legislation.  Even taking the ALRC report on its face what exactly are the penalties to which the article refers.  It is not beyond the wit of drafters to permit the operation of shield laws with a statutory right of privacy.  It is also a matter of judicial discretion.  A court can make orders remedying the breach of privacy without requiring an exposure of sources.  The legislation can ensure this to be the case.  Why is it impossible to do?

Convictions for contempt for refusing to comply with court orders under the new privacy regime could result in journalists being given criminal convictions or jailed.

Contempt of a court order can result in most individuals being exposed to a conviction and jail.  That assumes the prerequisites of the contempt are made out.  Courts of all persuasions in all civil jurisdictions take a very dim view of their orders being flouted.  There has always been a strong policy and legal basis for them to deal with breaches by contempt actions.  But this is hardly a novel outcome.  By the same token contempt proceedings are thankfully rare and it is even rarer for parties to be jailed.  For a useful analysis of contempt proceeding it is worth reading Ali v Collection Point Pty Ltd [2011] FCAFC 87 (15 July 2011).    But before we get to this sad end point why is it assumed that criminal convictions and jail is the likely outcome.  And why is it assumed the media is the likely target.

The plan would also allow courts to issue injunctions preventing the publication of news reports — and possibly entire editions of publications — if judges considered they contain serious invasions of privacy.

Again, what plan?  It depends on what the Bill says.  Assuming there is such a power the legislature can set the bar high or low and introduce a range of factors that must be met.  Obtaining an injunction is no easy thing in civil actions.  Courts are reluctant to grant them unless there are strong reasons for doing so.  If damages provide an adequate remedy a court is generally unlikely to grant an injunction, all other things being equal.  But what is the inherent injustice of having a power to injunct an ongoing breach of privacy?  Orders injuncting a party from doing something are drawn very specifically and very narrowly.  Predicting the injunction of entire publications is assertion more than argument.  What is the basis for making this broad brush assertion. What is missing in this analysis is that a tort of privacy would apply

Mr Quill said this aspect of the plan would be widely used by celebrities and public figures and would expose the media to tactics that were not available under the normal law of defamation.

For someone who doesn’t know even what the discussion paper says this is an extraordinary prediction.  Presumably he is taking the UK example of parties obtaining injunctions.  Again there may be a role for them in privacy rather than defamation actions. They are different causes of action.  Whether there is such a scope depends on what the legislation says.

The federal government is considering a plan drawn up in a 2008 report by the Australian Law Reform Commission. It recommended that the federal government should create a statutory tort or “cause on action” that would allow people to sue each other — and the media — for serious invasions of privacy.

True enough as far as it goes.  More accurately the Government is issuing a discussion paper.  How much it embraces the recommendations of the ALRC is yet to be seen.

However, Mr Bartlett said there was a flaw in the ALRC’s proposal. He said the commission had drawn up its plan for the new civil action without first examining whether privacy breaches in Australia justified such a move.

“If you read the report, the academic analysis that justifies the conclusion is not in the report,” Mr Bartlett said.

“Where is the evidence that we need this thing in Australia?”

Mr Quill said there was “absolutely no factual basis” justifying such a sweeping legal change.

Please!  This is an entirely specious argument.  There have been any number of actions constituting a horrible breach of some-one’s expectation of privacy.  Barrrie Cassidy gave an example on Insiders yesterday.  The story he was alluding to is, I suspect, that of the Current Affairs piece about a Sydney electrical repair shop, where reporter Jane Hansen confronted the owner of the shop, Benny Mendoza, accusing him of overcharging and in one case of not doing any work at all on the item. The story alleging overcharging went to air on Monday 18 August 1997. On Thursday 21 August, Mr Mendoza, a father of two, hanged himself in his garage. It was an appalling piece of foot in the door journalism. What about the photographs of Senator Bob Woods and his wife, published in the Daily Telegraph in 1996 and labelled by the Australian Press Council as ‘a blatant example of the unjustified breach of privacy.’  Consider the fact sitaution in Giller v Procopets.  And there are plenty of other examples involving both media and individuals.  That there have been few actions to enforce a privacy right reflects the difficulty in bringing such an action with the law as it currently stands.  More to the point the analysis of Bartlett and Quill is completely erroneous.  They seem to assume that before a Law Reform Commission can not review the state of the law and find there is a gap that should be filled.  It is poor logic and self serving. A report is not a pleading.  Does Bartlett say that the Victorian Law Reform and the New South Wales Law Reform Commissions have also engaged in erroneous analysis.  Did there need to be a mass of evidence before the legislature enacted section 52 of the Trade Practices Act.  There is a basis for a tort of privacy in New Zealand, in the US and the evolving law in the UK.  Is Australia so dramatically different to each of these societies?

As well as the new penalties, the ALRC wants courts to be able to impose financial penalties, or awards of “damages”, as well as the much higher “aggravated damages”. Those suing the media would be entitled to these payouts even if they had not suffered any damage as a result of the media’s actions.

Again, what an ALRC report recommends and what ends up in legislation are often two different things.  Aggravated damages are not generally awarded.  That is not to say they are novel.  They have been available to courts for many years and have their place in civil claims.  What exactly are the penalties the report refers to? The report is not at all clear.  An award of damages is not a penalty.  Aggravated damages are not a penalty either.  The comment about “those suing media would be entitled to these payouts… ” makes little sense to me.

The Press Council failed to persuade the ALRC to include several defences for the media in the proposed tort. These would have enabled the media to avoid liability:

lWhen the plaintiff has consented to the publication of the material that forms the basis of their complaint.

lWhen the media can show that the material they had published was already in the public domain.

lWhen the media can show that they published the material in order to show that the plaintiff had not been telling the truth.

The only defences endorsed by the commission would enable liability to be avoided if the media was relying on a legal right, such as privilege.

Fair enough.  Perhaps those recommendations will be accepted as a consequence of the response to the discussion paper.  It his hardly a sign of bad faith by the ALRC to reject a submission.

Mark Day’s piece,Privacy move threatens to muzzle critics, is an interesting and sensible discussion in an otherwise disappointing discussion to date.  He says, in part:

The matter at the core of the public debate on privacy is not about medical or financial records, but rather the media’s habit of intruding into private activities. This is where people are not equal. Most of us would accept it is not valid to photograph and publish pictures of a bloke coming out of a brothel or a gay sauna, but if that person is a minister of the crown, or a political candidate running on a platform of closing brothels or gay bars, or a church minister preaching family values on a Sunday — well, the goalposts are moved and personal behaviour as it relates to an individual’s public position is relevant.

Most of us would not want our financial dealings probed, but if the only way to catch a drug dealer is by demanding an explanation for large licks of cash flowing through their bank accounts, then there is a public interest in invading that person’s privacy.

Film stars cannot invite the public to watch them perform on screen, then expect they won’t be the subject of the public’s attention in real life. Celebrities whose livelihood depends on public patronage and who involve themselves in the symbiotic media publicity game cannot expect they can throw a switch to “private” any time it suits them.

If the privacy issues were confined to a few people in public positions there would be little cause for a protective law. But in recent years the privacy landscape has widened, largely through the development of social media. Here, “ordinary” people — not a pejorative term, but one used to distinguish them from the public figures referred to above — frequently offer information about themselves on sites such as Facebook. Many do not realise that by doing this they are putting their information in a public place and the media are entitled to draw from it. This won’t normally happen unless the person becomes a subject of media interest, often for reasons entirely unrelated to their presence on Facebook.

People who have had relatives killed in, say, road or aircraft crashes often complain victims’ pictures have been taken from Facebook. In their grief they can’t see it was the individual, not the media, who made this possible.

There are other issues not directly involving media action. What happens when “sexting” goes viral? (Ask former US congressman Anthony Weiner.) What of CCTV street surveillance pictures? What rights do individuals have over their own images in public places — particularly if they’re shown where they weren’t supposed to be?

The media has been exempted from many provisions of the Privacy Act for good reason. Despite its many failings, the media plays an important role in keeping public life honest and transparent — criminals and lesser wrongdoers are frequently brought to justice through investigative journalism, and democracy would be the poorer without it.

I think it is likely a law will be framed at some stage to protect against “serious” breaches of privacy, however that may turn out to be defined. The courts have been moving that way for years with common law torts.

It would be better if the media worked with government to help propose a reasonable law, with robust mechanisms to allow for the full and proper protection of the public interest.

A sensible general comment at a very, very early stage in the discussion process. Why the heading of the article is so at odds with the piece begs another question. Peter Van Onselen inPolitical parties violate our rights to privacy highlights the lack of purity of the political parties in dealing with privacy issues.  Political parties are exempt from the operation of the Privacy Act.  It is an excellent read.

George Brandis’ article Privacy report calls for more press freedom is a curate’s egg, good in parts.  It is worth considering the main commentary on the ALRC Report:

The sheer size of the ALRC report – three weighty volumes totalling 2694 pages – discourages careful scrutiny by time-poor politicians and journalists. This assists the simple-minded conclusion, fostered by the spin-doctors, that because the report itself is so big, there must be a big problem. However, those who take the trouble to navigate their way through it will find that there is hardly anything in the report which gives credence to the PM’s newly discovered concern about the abuse of press freedom. On the contrary, of the numerous privacy issues with which the report deals, hardly any relate to the conduct of the media.

True enough and fair enough.  The ALRC report covered a wide range of privacy issues.  Putting aside the commentary about the Prime Minister’s comments it is true that there has been spin doctoring going on, on many sides of the issue.

Only one of the 74 chapters of the report deals specifically with the conduct of journalists. This is limited to consideration of whether the exemption of journalists from the operation of the existing Privacy Act should remain. Far from concluding that the Australian media has “hard questions” to answer when it comes to their respect for privacy, the ALRC, in the course of the most exhaustive review of privacy protection ever undertaken in this country, concluded that the journalism exemption should not just remain but be extended, by widening the definition of the conduct which is captured by the term. It also recommended that the definition of “media organisation” should be widened.

Fair enough comment.

Nowhere in the discussion of journalistic practices did the ALRC cite instances of abuse which warranted greater restrictions on press freedom in the name of privacy. On the contrary, by recommending the broadening of the exemptions of journalists from the operation of the Privacy Act, it implicitly concluded the opposite.

As far as it goes this is unexceptional.  But this comment does not detract or address the ALRC’s recommendations about a statutory right of privacy.  The recommendations are not inconsistent.  A statutory tort of privacy or whatever moniker one puts on the cause of action is not directed against the media per se.

As the authors of the report observed, those recommendations were made “in deference to the critical importance of freedom of expression, particularly freedom of political communication, in our democratic system of government”. To the extent that the ALRC considered there was any room for improving safeguards in relation to journalistic practices, it recommended that be done by enhancing the adequacy of the self-regulatory regime.

This is true. But Brandis deftly avoids the recommendations about a statutory right to privacy.

The government was given the ALRC report in May 2008. A leisurely 18 months later, then cabinet secretary senator Joe Ludwig published the government’s response. It accepted 113 of the recommendations in full, accepted another 28 in principle, accepted another 34 either in part or with amendment, “noted” two and rejected 20. However not one of the four recommendations concerning the conduct of journalism was addressed in the response.

True enough.

“The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive … to prescribe opinions to [the people] and determine what doctrines or what arguments they shall be allowed to hear,” wrote John Stuart Mill in On Liberty in 1859. What Mill thought was no longer necessary in mid-Victorian England more than a century and a half ago, is now, all of a sudden, necessary in Australia as the national government, in collaboration with its Greens alliance partners, launches an assault on those media organisations that dare to criticise it. The misleading use of the ALRC report on privacy, to create a straw man argument to justify that campaign, is but the latest instance of the PM’s very tenuous relationship with the truth.

Again putting aside the political commentary it is hard to argue with the tenants of the paragraph.  But it does not address the issue of a stautory right to privacy.  There may be a lack of purity in the circumstances leading to the discussion on Privacy being re opened last week but that is a different issue to the actual issue itself.

On Insiders Brendan O’Connor was interviewed on the Privacy Issue and said:

BARRIE CASSIDY: The fresh look at the privacy issue arises from a three-year-old report. Somebody has a good memory.

BRENDAN O’CONNOR: Well the Australian Law Reform Commission report is a very comprehensive report, 2,700 pages. But it goes to a whole number of areas in our society and one of which of course is whether we have a statutory, whether we need a statutory right of privacy in this country.  And I think given the scandal overseas and some mass breaches of privacy in Australia there are some questions as to whether we have sufficient protection afforded to ordinary citizens in this country. And for that reason I’ve brought that recommendation forward.

BARRIE CASSIDY: But you talk about the scandal overseas. It’s already illegal to hack into telephones. You don’t need to change that.

BRENDAN O’CONNOR: Well that’s right. There are criminal sanctions against certain behaviour in this country.

BARRIE CASSIDY: So why then is the experience in the UK relevant to this?

BRENDAN O’CONNOR: Well the Law Reform Commission has said well do people have sufficient protection when their privacy is seriously invaded? And do they have redress if indeed their privacy is invaded in such a manner? And I think these are very important questions for us to consider. And I do see them in the context of striking the right balance between freedom of expression on one hand and the right to privacy on the other.  These are two ideals the Government supports. We just need to know whether we’ve got the balance right.

BARRIE CASSIDY: But give us a sense of what really concerns you about the way the media operates in Australia.

BRENDAN O’CONNOR: Well it’s not just about the media. As I’ve tried to make clear in relation to the tort of privacy it’s about whether a person has afforded proper protection. So for example it could be just a case where a man who’s a former boyfriend of a woman sends sexually explicit material to her family and to her employer and invades her privacy in such a manner that she deserves redress. Do we have sufficient laws in place? The Law Reform Commission says that’s not sufficient to date and I think we should examine that. In relation to the media, the media do have a responsibility to make sure that they have regard to a person’s privacy. I mean we saw gross violations overseas. But I have said very clearly that if it’s in the public interest then I don’t expect people to be able to invoke that right to privacy. So if the personal information goes to matters of a public interest then it would override that right.

BARRIE CASSIDY: Yeah but are you saying though that the media in Australia are too intrusive, even occasionally?

BRENDAN O’CONNOR: Well I think there are examples where there’s been serious invasion. I think what happens is you see material that might be titillating. And we’re all complicit because we’ll read the information. But it might be titillating one day, forgotten the next. But for the person whose information has been disclosed and used as fodder for the media, that has ruined their life. And I think we have to take those things into consideration.

BARRIE CASSIDY: Then it comes down to a question of definition. And you’re walking that fine line between freedom of speech and the right to privacy.

BRENDAN O’CONNOR: Well as it should be the case. And that’s why courts would determine on the facts whether in fact the right to disclose is, prevails upon the right to privacy. These are competing ideals as I say. But neither of these ideals are absolute. There are qualifications for both.

BARRIE CASSIDY: But you are picking on this at a time when clearly you’re surfing in off what’s going on in the UK. So even if it’s not opportunistic it’s certainly tactical to do it now.

BRENDAN O’CONNOR: Well it’s timely; no less timely than Mr Hartigan putting in place protocols to respond to the concerns that he has about what the scandals overseas mean to his organisation here. I think…

BARRIE CASSIDY: But that doesn’t represent in any sense guilt on his part or even a suspicion of guilt.

BRENDAN O’CONNOR: No absolutely not. But what there is as a result of the quite scandalous gross invasions of privacy overseas is a concern I believe in the community that we need to make sure we have sufficient protection afforded to ordinary citizens.
Now I’ve seen references to the rich and powerful. I’m talking about people who deserve proper protection. And I think the Law Reform Commission has made clear that they don’t believe there is such protection and the Government wants to look at it.

BARRIE CASSIDY: And it’s the timing of the thing though when Senator Stephen Conroy is going on about his annoyance with News Limited constantly. Is he freelancing or is this a concern that runs through Government?

BRENDAN O’CONNOR: Well look you know editors of newspapers will have a go at ministers and ministers might have a go back. These things happen. I mean these are unrelated to the, I didn’t sort of invent the Law Reform Commission’s report or contrive the recommendations. They were going to be attended to either this year or next.  I’ve brought them forward because I do believe as a result of the worldwide interest in the scandals where you’ve seen gross invasion of – I mean to think that you could hack into a murdered child’s phone to get information for a story seems to me quite disturbing. Now…

BARRIE CASSIDY: But that’s illegal. It’s illegal. You don’t need to change the laws to deal with that.

BRENDAN O’CONNOR: It’s illegal. But what does the parent – if there was something like that happen in this country, what would the family members of that child be able to do in terms of civil redress? Now I’m not suggesting there wouldn’t be criminal sanctions but what civil rights would they have? What redress remedy would they have to that invasion, that gross invasion of privacy? Now I’m not suggesting it happens here. But I do think there are invasions of privacy. And with the technological change and the way in which information flows there are questions about whether we have sufficient laws to protect ordinary Australians.

The subsequent discussion involving the panelists, found here, is instructive.  Barrie Cassidy was quite moderate.  Michael Sutchbury of the Australian, was in full carp mode.  Quite extraordinary. Amongst his choicier prognostications about the evils of privacy reform are:

• “..we’ve got the Australian Law Reform Commission Report Volume Three, by the time you get to page.. 2536 they talk about the right to personal privacy.” And!  Its hardly controversial that the ALRC report covered a lot of areas.  Hence the 3 volumes.  So what if the considerations come in late in Chapter 3.  As with all reports the rankings of importance or quality is not dictated where in the report it is found.
• “… you can always find examples on either side of this”.. CASSIDY ” Well and therefore if there are other examples..”  SUTCHBURY ” .. I would agree more with Murrsay Gleeson, former Chief Justice of Australia, who warned against this whole push from the law reform commission … Now I find it not a very good report at all .. its just a bunch of lawyers putting a very very wordy make work scheme for lawyers out there along the rubric of we should stop people from privacy being invaded.. ” Classic! Nonsense but a a full throated beserker charge at any thought of reform.  Nothing like wrapping yourself with the cloak of an unattributed paraphrased quote of sorts from Gleeson and then an ad hominum attack on the ALRC.  I suppose he didn’t like the wordy reports from the Victorian and New South Wales Law Reform Commissions.

Not Sutchbury’s finest hour.  The Balance of the discussion was quite reasonable.