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.
"force media outlets to publish material with which they disagreed" and "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."
the fact that no cause of action currently exists (and the lack of a definitive judgment under the common law) means that the numbers of those who have experienced a serious invasion of privacy cannot be known. Secondly, effective law reform must respond not only to current problems and gaps in the law, but also anticipate where there are likely to be significant problems in the future that will require some kind of regulation. In this case, it is clear that developments in information technology and surveillance technology have led to widespread concerns about an ‘increasingly invasive social environment’.
"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:
When the plaintiff has consented to the publication of the material that forms the basis of their complaint.
When the media can show that the material they had published was already in the public domain.
When 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."
74.173 The requirement for the court to balance the public interest in maintaining the claimant’s privacy against other public interests, including freedom of expression, will address many of the concerns raised by the APC, and other media and arts interest groups.
74.174 Consequently, the additional defences of consent, information already being in the public domain, and disclosure for the purpose of rebutting an untruth—as proposed by the APC—are unnecessary. If the claimant had consented to the invasion of his or her privacy or the information was already public, it is unlikely that the elements of the cause of action would be satisfied. In other words, the claimant would not have a reasonable expectation of privacy nor would publication be highly offensive to a reasonable person of ordinary sensibilities.
74.175 Publication made for the purpose of rebutting an untruth on behalf of a claimant is already adequately covered by the public interest test. This is illustrated by Campbell where the fact that Campbell was a drug addict was conceded by Campbell to be a publishable fact—there was a public interest in correcting the public statements made that she did not use drugs.