Privacy rights: The Merritt watch

I've fallen behind-tied up with other things-but The Australian's Legal Affairs Editor Chris Merritt hasn't, reaching more thunderous conclusions in the last two days about the evils of any statutory cause of action for a serious and unwarranted breach of privacy. I'm afraid in the light of today's column it sounds like he won't be any help at all to News Director of Corporate Affairs Greg Baxter who just the other day saw no reason why we shouldn't have "a very healthy debate about privacy, or a very healthy debate about the role of media in a democracy." The headline "Tort a hate-filled strike on liberal democracy" says it all really about Merritt's campaign to bring discussion to an end. A continuation in fact of a three year (and counting) campaign in which he admits to just one error:

On August 12, 2008, the day after the Australian Law Reform Commission launched its report on privacy law, I described its proposal for a statutory tort of privacy as one of the most hare-brained ideas to emerge from a proud institution. After the debate on privacy that has unfolded in the past couple of weeks, it is now clear that this was inaccurate. The push for a privacy tort is not one of the commission's most hare-brained ideas -- it is THE most hare-brained idea.

Merritt's capacity to reach the "one of most" conclusion within 24 hours of reading the report demonstrated either unique analytical skills or a closed mind already made up. His criticisms in the last two weeks suggest the latter. And that the time for reflection in the period in between hasn't been well spent. I've pointed out some errors and omissions in his reporting, none of which have caused pause or acknowledgement, but are trotted out again today. All this before release of an issues paper designed to stimulate discussion about a general right to privacy protection.

Merritt hasn't mentioned what he thinks those who experience serious and unwarranted invasion of their privacy from other than media intrusions should do. Presumably try their luck in the courts to try to persuade a judge the common law should extend further. I trust he won't find himself in such a predicament while a gap in the law remains.

Yesterday in "State uproar over Gillard plan to expose all public agencies to civil suits" Merritt discovered that consideration of a statutory cause of action for serious and unwarranted breach of privacy raises some complexities regarding federal and state laws and how to ensure nationally consistent rights in our traditionally hard to manage federation.That's no secret. His breathless reporting of what he portrayed as a government intention that federal legislation would cover state government agencies included (emphasis added)

The prospect of a wave of litigation triggered by Canberra's planned privacy tort led to furious protests by the states yesterday. 

The wave of litigation to one side, the furious protests amounted to predictable comments from two state attorney generals on a hypothetical.

The ALRC in putting forward its recommendation made the case for national consistency. The sort of thing for which media organisations campaigned for years in pushing for and succeeding with uniform defamation laws. No matter. The commission [74.186] thought federal legislation was the best bet and

"should cover federal agencies, organisations and individuals. It also should cover state and territory public sector agencies, subject to any of the constitutional limitations discussed in Chapter 3" 

But how national consistency was to be achieved was a matter for government. Another option was oulined:

The federal government could decide, however, to include a provision that provides that the federal Act is not intended to exclude or limit the operation of a law of a state or territory that is capable of operating concurrently with the federal Act.If the latter policy option prevails, it is essential to ensure that the states and territories enact uniform legislation. Failure to do so would give rise to the fragmentation and inconsistency that has characterised the regulation of information privacy to date.

The report notes the Queensland Government recommended that, ‘if implementation of a statutory cause of action for breach of privacy is proposed, such a cause of action should be located in federal legislation.’  And that the South Australian Government did not support any move to apply the cause of action to state public sectors through application of the Privacy Act to state bodies-which is not what was proposed: the recommendation is for legislation separate from the Privacy Act.

Two state law reform commission reports (Victorian Law reform Commission Surveillance in the Workplace Report 2010; NSW Law Reform Commission Report 120 Invasion of Privacy 2009) recommend to their respective governments something similar to the ALRC proposal and provide a state perspective. Both refer to the issue of national consistency. This from the NSW report:

11.1 The Commission agrees with the ALRC’s view that national consistency should be one of the goals of privacy regulation. A nationally operating privacy regime would do much to eliminate inconsistencies in the law between jurisdictions, and potential “forum-shopping”. This would help reduce the costs and other burdens on organisations operating across State borders, and more effectively regulate privacy invasion by trans-jurisdictional technologies, such as the Internet.
11.2 In keeping with this goal, we agree with the view put forcefully in our submissions that it is essential that a statutory cause of action such as we recommend be a part of the law of all Australian jurisdictions.This could be achieved by means of federal legislation...

11.3 Recognising that the province of private law is foremost a matter of State law within Australia’s federal system, our preferred model for achieving uniformity is for State and Territory legislatures to enact the Bill attached to this report. This would necessitate agreement between all jurisdictions on the provisions of the statutory cause of action for invasion of privacy. Each jurisdiction would then incorporate substantially uniform provisions within its own legislation. To maintain uniformity into the future it would be desirable to provide an agreed mechanism by which amendments can be made, such as reaching consensus through the Standing Committee of Attorneys General (SCAG). The enactment of totally new legislation would be unnecessary in most, if not all, cases. In NSW, for example, the Civil Liability Act 2002 (NSW) is an appropriate instrument in which to locate civil law privacy protection

The NSW and Victorian governments have not acted on the reports to date. Obviously an issue for the federal and state government to work through.

Those furious protests didn't seem too furious and a predicted backlash from the states may not eventuate. But good to hear in any event from the Western Australian government-one of two states that doesn't have any information privacy legislation for its state and local government sectors.

Another issue in Merritt's report yesterday that was off the mark was the alleged contradiction between aspects of a 

"privacy tort" that "would also clash with some of the "tort reforms" to end excessive damages claims and address a blow-out in insurance premiums. Those changes introduced a higher threshold test when negligence claims were brought against most government agencies."

While The Australian has kept on and on about a"privacy tort" some including the ALRC (and this blog) have avoided that term for the reasons set out in the report:

74.117 Individuals should be protected from unwanted intrusions into their private lives or affairs in a broad range of contexts, and it is the ALRC’s view that a statutory cause of action is the best way to ensure such protection..... (I)t does away with the distinction between equitable and tortious causes of action, and between the defences and remedies available under each.

74.118 The ALRC supports the view.. that the ‘statutory cause of action for invasion of privacy should not be constrained at the outset by an assumption that rules otherwise applicable to torts generally should necessarily apply to the statutory cause of action for invasion of privacy’. In addition this approach allows for the consideration of competing interests, including the public interest, ‘that have not traditionally been relevant in the development of tortious causes of action’.

The distinction-and the helpful lift in profile for the public interest that Merritt couldn't find anywhere until the last few day-appears to have been lost in despatches at The Australian.

On related issues, The Australian appears to have judged as unnewsworthy a privacy conference in Sydney on Wednesday as reported in the Sydney Morning Herald and remarks of Privacy Commissioner Timothy Pilgrim that "there has been a 27 per cent jump in the number of incidents of stolen or lost personal information reported to the Privacy Commissioner in the past year but inadequate laws mean thousands of incidents go unreported."

But the paper's headline writers were happy to cross a few boundaries on Wednesday with the headline Greens challenged to grow up on right to privacy to a report about the party's lack of openness in the conduct of party affairs-not the sort of privacy right that has dominated discussion recently.