You may have been thinking things couldn't get any worse in the event that a statutory cause of action for an unwarranted serious breach of privacy eventuates, after headlines like this in The Australian over the last week:
Privacy plan:journos facing jail
Privacy move threatens to muzzle critics
Privacy tort will 'shield rich and powerful
Tort a hate-filled strike on liberal democracy.
Wrong.Hanrahan's alive and well and moved into Holt St.
The Australian's Legal Editor Chris Merritt, at last acknowledging the government led consultation we are yet to have will be about broader issues than the media, yesterday predicted further catastrophe. In "Tort lawsuits could hit productivity" (in the print edition the more serious "could damage productivity") Merritt linked the issue to the future economic outlook, predicting a "wave of class actions against business police and hospitals," quoting peak industry bodies not convinced there is a problem and warning of increased costs, frivolous lawsuits and losses of large amounts of taxpayers money.
Who knows,"Carbon tax linked to privacy plan" might not be far away.
(Memo The Australian and business leaders who haven't thought about this until the phone rings with a request for comment: time for a deep breath. Check out the Australian Law Reform Commission Report bearing in mind it's three years old, and other available literature on the nature of the problem- a significant rise in instances of invasion of privacy, the uncertain state of the law in Australia, and whether any gap should be addressed or left to the courts without further statutory guidance. Oh, and what was proposed by the ALRC sets a high bar with the express purpose of heading off frivolous lawsuits.)
For a more serious contribution see this opinion in The Conversation from Professor Megan Richardson of the University of Melbourne suggesting common law action for breach of confidence could cover some scenarios being discussed including phone hacking. An issue that needs to be discussed obviously although the ALRC identified "problems inherent in attempting to fit all the circumstances that may give rise to an invasion of privacy into a pre-existing cause of action—such as breach of confidence." Professor Richardson suggests that if a statutory cause of action is in the frame, the Victorian Law Reform Commission recommendation goes "further in providing a full public interest defence. To me that seems the better approach."
Privacy plan:journos facing jail
Privacy move threatens to muzzle critics
Privacy tort will 'shield rich and powerful
Tort a hate-filled strike on liberal democracy.
The Australian's Legal Editor Chris Merritt, at last acknowledging the government led consultation we are yet to have will be about broader issues than the media, yesterday predicted further catastrophe. In "Tort lawsuits could hit productivity" (in the print edition the more serious "could damage productivity") Merritt linked the issue to the future economic outlook, predicting a "wave of class actions against business police and hospitals," quoting peak industry bodies not convinced there is a problem and warning of increased costs, frivolous lawsuits and losses of large amounts of taxpayers money.
Who knows,"Carbon tax linked to privacy plan" might not be far away.
(Memo The Australian and business leaders who haven't thought about this until the phone rings with a request for comment: time for a deep breath. Check out the Australian Law Reform Commission Report bearing in mind it's three years old, and other available literature on the nature of the problem- a significant rise in instances of invasion of privacy, the uncertain state of the law in Australia, and whether any gap should be addressed or left to the courts without further statutory guidance. Oh, and what was proposed by the ALRC sets a high bar with the express purpose of heading off frivolous lawsuits.)
For a more serious contribution see this opinion in The Conversation from Professor Megan Richardson of the University of Melbourne suggesting common law action for breach of confidence could cover some scenarios being discussed including phone hacking. An issue that needs to be discussed obviously although the ALRC identified "problems inherent in attempting to fit all the circumstances that may give rise to an invasion of privacy into a pre-existing cause of action—such as breach of confidence." Professor Richardson suggests that if a statutory cause of action is in the frame, the Victorian Law Reform Commission recommendation goes "further in providing a full public interest defence. To me that seems the better approach."
Somewhere, sometime,The Australian notwithstanding, we might be able to progress to a sensible discussion of these issues. The Victorian report a year ago recommended two causes of action: one dealing with misuse of
private information, the other with intrusion upon seclusion, or
unwarranted interference with spatial privacy. Although the report
focuses on the misuse of surveillance in public places, the new causes
of action would not be limited to conduct that occurred in a public
place or that involved the use of a surveillance device. The commission
noted that if the Commonwealth Government acted on this issue:
"Any such legislation would probably remove Victoria’s ability to enact a similar cause of action because of constitutional restrictions. However, as the Commonwealth may not implement the ALRC’s recommendation, or may take some time to do so, Victoria is still in a position to provide leadership in this area."
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