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Tuesday, September 13, 2011

Panel concludes we need a right to privacy, but, but and but...

Last night's forum in Sydney, attended by plenty of students (good) but few from the government, corporate, civil society, media or privacy law world (not good) was somewhat disappointing. No one on the panel- Richard Ackland, Chris Merritt, Associate Professor David Rolph, Professor Barbara McDonald, Tom Blackburn SC and Andrew Stone as chair-outlined or made the case for a statutory cause of action.I don't think the words "International Covenant on Civil and Political Rights" passed anyone's lips till question time. Ditto for developments in peer group countries other than the UK. It was a pity the panel didn't include some of the eminent lawyers involved in what amounts to years of research behind the ALRC and NSW LRC reports on the subject who could have provided this starting point for discussion.

Tom Blackburn and Professor Rolph expressed support for the general idea but focused on the difficulties (such as the effect of injunctions on free speech) in developing a workable proposal. Professor McDonald said there are lots of laws already that have a privacy component and would prefer a common law response to legislative action because the historical record of unintended consequences shows the executive and parliament won't get the law right (judges will?). Professor McDonald sees a stronger case for legislation if freedom of speech rights are enshrined as well. Richard Ackland thinks a cause of action is coming one way or another. Chris Merritt agreed there is a right to privacy but a cause of action for a serious invasion (which he characterised as "emotively phrased") is "too vague and nebulous." Merrittt suggested other ways to address the issue particularly giving the Privacy Commissioner more powers and extending jurisdiction. I think he had corporate invaders in mind but made no mention of the fact that the media in the conduct of journalism is outside the jurisdiction of the commissioner while the current exemption from the Privacy Act continues, and that the media's self/co regulatory schemes to protect privacy are weak and largely ineffectual. Borne out by everyone on the panel agreeing that the outing of David Campbell and ACMA's finding that the 7 Network had a public interest excuse was a disgrace and indefensible.

The only news regarding the Government's issues paper, promised almost two months ago, is it is coming "soon." Unfortunately not soon enough to inform last night's discussion.

(Update: here is Chris Merritt's account of the Forum published on 16 September "Concerns over privacy tort starting to spread".Buried away you find some agreement in principle as per my summary.  After headlines on his articles over the last month or so that included the over-hyped and misleading "Tort a hate-filled strike on liberal democracy", "Privacy plan: journos facing jail", and "State uproar over Gillard plan to expose all public agencies to civil suits" Merritt modestly claims no credit.)


  1. Pretty poor organisation not to include any (one or two!) proponents of a legal right of action for privacy, or serious critics of the failure of existing law and regulation (including the nebulous and expensive common law, and the constantly nobbled regulator).

  2. Giovanni6:21 pm

    Dear Sir,
    I am a first-year Law student and attended the seminar. I agree that it's a shame a proponent of statutory reform was not present, but the discussion was still great - the panellists presented many of the difficulties associated with reform. Blackburn's contribution was particularly useful from a more practical perspective.
    Just a thought - didn't it seem as though the moderator was needling Chris Merritt a bit too much? I thought it was a bit inappropriate.

  3. Giovanni,
    I'm glad you found the discussion interesting and useful. On the contrary I thought Chris Merritt got away with a lot without serious questioning of what he was saying. And he wasn't the only one..

  4. John Chifley1:30 pm

    I was intrigued by Barbara MacDonald's phrase that the "wrong people hide behind privacy".i think there is a clear wrong that needs a legislative or judicial remedy. I'm thinking of the St Kilda football club, that boy in the US who suicided because someone posted him having gay sex online or that girl at ADFA - just for starters! Not even thinking of News of the World escapades or Facebook sneakiness, yet. It's up to courts to exclude "the wrong people" and for parliament to frame well thought out legislation involving a reasonable person test and the usual common law tool kit. Surely all those possums have not died in vain!