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Monday, February 20, 2012

Media muskets trained on statutory cause of action for breach of privacy

Man vyi
I'll be surprised, given the "wicked" policy challenges on the government's agenda (today add school funding to the list), the current political mess, the polls and the hung parliament, if Canberra bites the bullet and moves ahead any time soon - this year, this term, this decade?- on the proposed statutory cause of action for a serious and unwarranted breach of privacy. At a time when it will be wary at the mere whiff of more grapeshot, acting on this would involve a showdown with yet another loud well resourced lobby, one equipped with the biggest cannon of them all, the media. The grapeshot is already flying in a related field in media submissions in response to reform ideas floated in the interim report of the Convergence review, and in editorials and opinion pieces.

This is even before the next skirmish when the Finkelstein inquiry reports on pressures facing newspapers, online publications and their newsrooms, the operation of the Australian Press Council, and conformity with media regulations, codes of practice, and public interest considerations-head for the bomb shelter at that stage.

Then there is the statutory cause of action. If I'm correct, there will be nothing particularly rational about a decision to leave the issue where it is - up in the air.

After what cumulatively amounted to years of inquiry, the three law reform commissions that looked at the issue -Australian, Victorian and NSW - recommended legislative action to establish a general cause of action, one not aimed specifically at the media.

Almost all legal experts who lodged a submission in response to the government's Issues Paper published last year accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:
The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.
The Law Council of Australia has shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in this case. Two members, the Law Society of NSW and the Law Institute of Victoria are now publicly in favour of legislation.

There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center, state privacy law regulators. All accept the tricky part is to get the balance right-and there are plenty of ideas about that including whether to set the bar low or high, and whether to frame freedom of expression as an element of the cause of action or as a defence.

In media ranks the ABC and the MEAA don't have a view one way or another on the need for legislation. (Disclosure:I took part in an MEAA working group discussion on this last year.) Surprisingly the Australian Press Council reports division in the ranks:
Some members of the Council believe there should be a statutory cause of action for some invasions of privacy. They consider that this course is especially appropriate in the light of recent and likely advances in communication and surveillance technologies that provide greatly increased opportunities for such invasions. They also believe it is preferable to establish a statutory right at the national level than for current common law causes of action to be extended by the courts in a piecemeal, protracted and unpredictable manner which may differ considerably between States. They believe an appropriately designed statutory cause of action would encourage the handling of complaints by alternative dispute resolution. Other members of the Council consider that existing protections from laws relating to trespass, stalking, surveillance devices etc and from relevant court rules are sufficient. They see expansion as an unnecessary and unjustifiable intrusion on public access to information and freedom of expression. These members are concerned that the statutory cause would unduly limit exposure of corruption, deception or some other form of illegality or impropriety, which is adverse to the public interest. They also believe that it should not be introduced in the absence of a statutory right of freedom of expression, enshrined in a Bill of Rights or analogous legislation. They argue that the cause of action is likely to be of little practical use to people who are not wealthy.
But, sucking in:
All members of the Council agree that if there is to be a general cause of action it should apply only where there is a reasonable expectation of privacy and the bar for plaintiffs should be set very high. This could include, for example, restrictions along the general lines of the Australian Law Reform Commission’s recommendations that the invasion should have to be serious and to be highly offensive to a reasonable person. It should be a defence to establish that in the particular circumstances of the case the public interest in enabling access to information about matters of public concern and in allowing freedom of expression outweighs the public interest in maintaining privacy.
However other media organisations including those who have the muskets at the ready in house,  and big business-the banks, finance companies, the advertising industry-are strongly against.

As no one is marching in the streets under the "what do we want" banner and opponents have muddied the waters with plenty of nonsense, the attraction of the "too hard basket" means politics seems likely to trump rationality. On this score shadow attorney general Senator Brandis has joined the media chorus recently, telling The Australian  (paywall) the sort of thing it loves to hear: the proposal is part of a "gradual, Fabian-like erosion of traditional rights and freedoms in the name of political correctness." Well it's got better pedigree than that. Clearly the senator has a lot of reading to catch up on-but here is a precis.

Substantial submissions worth a read include that of Jessie Porteus (in favour) with either plenty of time on her hands or with a completed thesis ready at the right time. Don't bother with mine- its brief and you've read it before.

The Office of Australian Information Commissioner suggests a filtering process before the courts become involved, which sounds interesting. But how this would work is unclear given media organisations in the conduct of journalism (and political parties, small business, and individuals) are not subject to the Privacy Commissioner's jurisdiction. The commission
 that consideration be given to a model where an individual alleging a privacy invasion initially complains to the OAIC under a model similar to that currently used for complaints of privacy interference in breach of the Privacy Act. An option to proceed to court could be available in limited circumstances such as permitting the OAIC to refer a question of law to the Federal Court for guidance, and allowing a party to commence court proceedings where the OAIC declines to make a determination following an unsuccessful conciliation.
As the government is yet to get through any change to privacy laws following the ALRC report in 2008, with which it mostly agreed way back in 2010, don't hold your breath.


  1. Anonymous3:44 pm

    It was a thesis I submitted for my Bachelor of Laws. Thank you for your reference- Jessie Porteus

  2. Jessie, I trust the markers were suitably impressed. A very solid piece of work, congratulations.

  3. Jessie Porteus5:30 pm

    Thank you!