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Monday, July 25, 2011

Hares running replace chickens yelling in privacy non debate.

On the subject of addressing uncertainty in Australian law regarding legal recourse for a serious and unwarranted breach of privacy, as we were. If you were thinking after reading News reports of the last few days that the consequences couldn't be more dire if a yet to commence public consultation, based on a yet to be released issues paper, leads to yet to be drafted legislation that then goes to parliament, and passes (phew), think again.

Legal Editor at The Australian Chris Merritt today tops previous efforts with "Privacy plan:journos facing jail." This beat up appears alongside Mark Day's more considered reflections in the same paper. While the subbies continue on song ("Privacy move threatens to muzzle critics"), Day concludes:
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.
Common sense to one side (more of it in subscription only articles in Crikey by Dr Denis Muller of Swinburne University, and  Michael Smith former editor of The Age), and back to the Merritt article.

Journalists are said to face jail if they are found in contempt of court for refusing to disclose a confidential source That's true now. Since the passage of a federal shield law at the behest of media organisations there is a rebuttable presumption against disclosure of identity of a confidential source in Federal matters unless the court rules "the public interest in the disclosure of evidence of the identity of the informant outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. A failure to comply with a court order can lead to penalties-ask Derryn Hinch.

The "privacy plan" involves nothing new in this respect. If a cause of action is enshrined in the law that may lead to some court actions. If discovery of the identity of a confidential source of information given to a journalist becomes an issue the presumption against disclosure will apply, but may be overturned in the public interest in certain circumstances.What's the new problem?

That a court might order in a particular case that a media organisation publish that it had been found to have engaged in a serious invasion of privacy, according to Justin Quill, of Kelly Hazell Quill (there is no disclosure that News is a client) would
"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."
It sounds to me exactly the same as the obligation voluntarily accepted for years by members of the Australian Press Council, including publishers of The Australian to publish APC adjudications on complaints about a breach of standards including privacy standards even one involving a finding of a serious invasion of privacy.

Quill and another media lawyer Peter Bartlett, a former chairman of national law firm Minter Ellison both are quoted as saying there is no evidence to support law reform.  But there is growing evidence of  serious privacy intrusions, despite the fact that the media as far as we know does not engage in widespread privacy invasive practices. However the ALRC report states [74.141]:
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’.
Merritt finishes with a flourish that makes it sound as if legitimate media concerns about freedom to publish got short shrift from the ALRC:
"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."
But the ALRC report addressed these concerns in its recommendation pointing out how they were accommodated:
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.
And its only Monday!

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