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Sunday, October 09, 2011

Privacy cause of action labelled "fanciful" but that's a media opinion.

Richard Ackland's opinion piece in the Sydney Morning Herald on Friday "Muffle the sound and fury over privacy law" was mostly sound and fury of sorts, with Ackland and some like minded (or selectively quoted) experts listing one expected problem after another in moving ahead with a statutory cause of action for serious and unwarranted invasion of privacy. Still nowhere near a patch on Chris Merritt's recent renderings that any such legislation amounted to a hate filled strike against democracy that would see journalists face jail, national productivity fall and sundry other calamities. But it was right up there with The Australian/News campaign to try to influence the government to ditch the proposal, with Ackland concluding "It all looks too fraught and too fanciful." Strange given I recall he suggested at some point that media organisations would be best served by the certainty that would come from legislation rather than leaving things to the courts. Ackland and Merritt are entitled to their opinions, but both seem to deny there is a problem and exaggerate the difficulties and consequences of a legislative response-well that's my opinion at least.

Reading Ackland's article, for example you wouldn't know that the proposal isn't primarily aimed at the media, a point made consistently throughout the Issues Paper, but apparently not accepted by some media commentators.

In dismissing the need for action because "there is no real demand for such a law, other than a diffused mood that the media is too big for its boots" he fails to address the reasons given in the Issues Paper, or arguments for, put by the ALRC, NSWLRC and VLRC (in short form in this post).

Then there are all those allegedly insurmountable difficulties in framing legislation and interpreting and applying it in practice-what's "serious", what's "reasonable", how to balance the "public interest"? How could anyone be expected to cope?

With one reference to UK experience- that few cases get to the point of decision- Ackland doesn't mention that countries where such rights exist seem to manage, and the sky there is yet to fall on the media (News of the World ramifications to one side). To take just two of five examples also referred to in brief in the Issues Paper.

In New Zealand the law recognises a tort for invasion of privacy. It applies to unjustified publication of private information, and rarely arises in court ( four times in recent years). The essential elements as formulated by the High Court  are (i) the existence of facts in respect of which there is a reasonable expectation of privacy; and (ii) publicity given to those private facts that would be considered highly offensive to an objective reasonable person. A defence  exists where publication is justified by a legitimate public concern in the information. NZ courts so far have not recognised a cause of action for a more broadly defined invasion of privacy.

In Canada (yes I know it has a Charter of Rights of the kind that some in the media here oppose up hill and down dale) at the federal level the Personal Information Protection and Electronic Documents Act provides for a civil remedy that allows the Federal Court to award damages to a complainant in respect of certain contraventions of the Act. Media organisations and journalists don't feature in the case law as journalism is exempt. Banks and financial institutions do appear. Damages awards have been modest-a few thousand dollars. As in Australia the common law in Canada regarding a right to sue for invasion of privacy is not settled.

But the provinces of British Columbia (since 1968), Manitoba, Saskatchewan, and Newfoundland have laws that create a general cause of action, usually stated in these terms:
"It is a tort, actionable without proof of damage, for a person wilfully and without claim of right, to violate the privacy of another person."
Some of the laws- without limiting the generality- list examples of violations of privacy that give rise to the right-  auditory or visual surveillance, listening to or recording a conversation without consent, and use of letters, diaries or other personal documents of a person without consent, expressed or implied.

The laws typically provide for defence where conduct was reasonable in the course of news gathering activities, where the matter published was of public interest or was privileged under the law of defamation.

The BC Law Instiute issued a
Report on the Privacy Act of British Columbia (pdf) in 2008. There is a lot in the report of interest and relevance here, including that there have been few successful cases (p 41) and few that involved the defence for journalistic activity (p18).

Perhaps the mere existence of the right on the statute book has a salutary effect?

Another reason for nutting out the problems and answers and giving it consideration here.

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