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Monday, May 24, 2010

Campbell and a cause of action for breach of privacy

I imagine racing off to court is the last thing on David Campbell's mind at the moment.The current uncertain state of the law wouldn't suggest any clear claim of action for breach of privacy. There's nothing defamatory about any allegations I've seen, and truth is a defence in any event. The proposals on the table, but so far not acted upon by government, for a statutory cause of action for breach of privacy ( broadly framed and not just aimed at the media) would if acted upon, raise additional questions in any subsequent legal proceedings than the one currently getting media attention: whether there is public interest that justifies publication of information about a person's personal or private affairs.

While there are differences between what has been proposed by the Australian and NSW law reform commissions, the first hurdle for any plaintiff under either would be to demonstrate a reasonable expectation of privacy in the circumstances. Would anyone coming or going to the front door of Ken's at Kensington, apparently in public view have such an expectation? (I noticed somewhere there is a notice there that video cameras are present at reception.)  A reasonable expectation of privacy in a public place would not be high in most cases, although there are some circumstances- a distressed woman standing outside an abortion clinic for example -  where things would be different, as flagged in this post last September. The reasonable expectations of a public figure in all the circumstances would probably be lower still, assisted by comments in the last few days by Julie Bishop and Graham Richardson that politicians should have none.This post last September includes comment about expectations arising in the Della Bosca affair, the last time a similar issue cropped up in NSW.

Beyond the reasonable expectation matter, the Australian Law Reform Commission proposal would then require the plaintiff to demonstrate "the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities." And then these considerations, before any issue of defences arise:
"In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression) - emphasis added.

David Marr one of the few to comment about the legal aspect so far has pointed out that the NSW Law Reform Commission has "called for laws to allow people merely "annoyed" by accurate media reports to sue for damages", and sees this as a terrible threat to free speech. The Commission report states that a plaintiff should not have to demonstrate that conduct was highly offensive, but it contains plenty of other hurdles and protections. Marr doesn't mention that the ALRC proposal in any event is for a serious breach. There are legitimate questions about the NSWLRC proposal including these raised in this post  last year: 

What signifigance should be attached to the fact that NSW report would qualify the right by reference to the public interest in the public being informed about matters of public concern, but makes no mention of "allowing freedom of expression", the terms used by the ALRC? Or to the NSW Commission differing with the ALRC over the need to specify examples in the law, whether actionable conduct need give rise to offence or substantial offense in intruding on reasonable expectations of privacy, and to differences in the range of available defences? 

Marr thinks 7 might have scored another media own goal by giving politicians a further incentive to act on this matter. Eric Beecher at Crikey says
Invading and breaching privacy is a centrepiece of tabloid journalism that will continue to grow iteratively. Whatever they get away with today will be the starting point for what they can get away with tomorrow, unless stronger privacy legislation or regulation is introduced by governments to curb this behaviour. The big dilemma with the argument for tougher measures — and it’s a dilemma that tabloid media exploits to the hilt — is that while there is a powerful argument to curb irresponsible abuse, there is also a powerful civil society argument to ensure that information that is truly in the public interest is not circumscribed by laws that have an entirely different intention.
Common sense suggests a serious effort by government and others including media organisations to working towards a sensible statutory cause of action rather than leaving all this to the courts to sort out over time-hardly in the interests of the public or the media I expect. News Ltd views are awaited with interest- and a sense of inevitability.

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