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Wednesday, December 17, 2014

Privacy tort could enhance press freedom protection here, according to UK media law expert

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Given the long concerted campaign by many media outlets led by The Australian (most recently here) to head off a privacy tort or cause of action, you're unlikely to see much of this in those pages.

From "Enhancing Press Freedom through Greater Privacy Law: A UK Perspective on an Australian Privacy Tort" by Associate Professor Paul Wragg, University of Leeds and Visiting Fellow at the University of Sydney, (Sydney Law Review Volume 36 No 4 December 2014):
"In light of previous inquiries identifying areas of concern in Australia’s privacy law provisions, the Australian Law Reform Commission (‘ALRC’) recently devised a new tort that, if implemented, would better protect individuals from serious invasions of privacy. Although the tort was designed principally with new technologies in mind, there has been vociferous concern that such a tort might unduly inhibit press freedom. This response is familiar to United Kingdom (‘UK’) commentators who have seen the press, in particular, react similarly to common law developments in privacy law. Yet that experience has not been entirely unfavourable to the UK press; indeed, the jurisprudence discloses a generous treatment of the term ‘public interest’, which has kept interference with press activity to a minimum. In light of the reference to press freedom within the ALRC’s proposed tort, and given the absence of an express constitutional provision protecting Australian press speech, this article argues that the UK experience shows how, counter-intuitively, the ALRC’s proposed tort could actually enhance, rather than diminish, press freedom protection in Australia. Consequently, it will be argued that the collectively dismissive response by the press to the ALRC’s inquiry represents a significant missed opportunity. As the ALRC warns, the common law may develop organically to better protect privacy interests. As will be argued, this prospect presents the obvious risk that press interests are not as fully protected as they would be under the ALRC’s proposals.
Dr Wragg dismisses as surprising, ill judged, difficult to fathom, out of touch with popular sentiment and detached from the reality of what is proposed, claims such as those made by News Corp Australia that "the threat to freedom of speech and communication posed by a cause of action, regardless of how it is structured, will undermine our ability to report in the public interest, to the detriment of the Australian public and Australia’s democracy."

However as privacy is one of those freedoms Attorney General Brandis doesn't talk much about, on this aspect is reported to have said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" and the media generally rushes to close the book on the subject, the issue seems destined to remain in the lost cause vault.

Common law development is likely to be slow, contested but as Dr Wragg points out not necessarily to the media's liking.

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