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Friday, August 15, 2008

Privacy cause of action commentariat in the ring

The match up continues today with some in the red corner, others in the blue, and still evidence that some critics of the statutory cause of action haven't quite come to grips with the proposal. So David Flint in The Australian observes:

"Extraordinarily, there is no defence of public interest, something which had been in the earlier discussion paper. Instead the court is to take such considerations "into account" in a balancing exercise. Surely, if we are going to have a new cause of action, proof of public interest should be the end of the matter."
The public interest isn't something you pick up off the shelf and say "Eureka!" In all sorts of areas a balancing of various interests is involved.The proposal is that this issue is one for the plaintiff, right up front.The action could fail at the first hurdle- on public interest/freedom of expression grounds-even before a defence is required .

David Weisbrot and Les McCrimmon of the Australian Law Reform Commission who have spent the last two years listening, pondering and analysing the options have this to say in The Sydney Morning Herald :

"The commission's final recommendation is that a legal action should be available to remedy a serious invasion of personal privacy, where the individual (a) had a reasonable expectation of privacy and (b) the conduct complained about would be regarded as highly offensive to a reasonable person. Further, the plaintiff would have to satisfy the court in each case that (c) the public interest in privacy outweighs other matters of public interest - including the interests in informing the public about matters of public concern and in allowing freedom of expression.By including the public interest test, covering only highly offensive conduct, and placing the onus of proof squarely on the person complaining of the breach, the commission has set a very high bar - taking into account the concerns of artists and media organisations about respecting freedom of the press and freedom of expression. Indeed, some privacy advocates and civil libertarians argue that we have set the bar much too high."

Elsewhere Chris Merritt writing in The Australian ("Tort reform") also doesn't attach much significance to the requirement that the plaintiff would have to address this issue to found a cause of action.

"Even if the cause of action had credible defences for the media -- which is not the case -- the mere fact of its existence would transform privacy law into one of the hottest practice areas."

And money for jam for lawyers? Maybe, maybe not- Weisbrot and McCrimmon point out it hasn't done much to line the pockets of lawyers in those Canadian provinces where something similar has been on the statute book for some years.

There is plenty more, but two other sparring partners are Greg Barns (Online Opinion)
and Richard Ackland
in the Sydney Morning Herald.

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