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Monday, September 26, 2011

The Australian's unique insight into privacy issues paper

Media reports on the weekend concerning the issues paper released on Friday on a statutory cause of action for breach of privacy were reasonably straight down the line. Except...

Chris Merritt Legal Affairs Editor at The Australian quickly skipped the 19 questions posed in the paper and in less than 24 hours after release was able to offer advice that the minister should "spike this flawed plan." (Hmm- in the same period, like most I imagine, I only managed a cursory read, and haven't got much further since.) Merritt sees business as the sacrificial lamb in government's dastardly plot to muzzle the press. Really.

From Merritt's "Policy really an assault on the media" (no emphasis added) :
IT is now clear that the Gillard government is preparing to expose business to a wave of class actions in order to step up its vendetta against the media. The media barely rates a mention in the issues paper on privacy law that was made public yesterday. But that fools nobody. This privacy plan, like the federal inquiry into the media, is another part of the government's hamfisted attempt to bring the media to heel. From the government's perspective, the privacy plan would have the great advantage of imposing a chilling effect on the press. It confirms that federal Labor is no longer the party of free speech.
And Lauren Wilson in an otherwise mostly factual account in The Australian of issues raised for discussion was only able to find one source for a quote. No prizes for guessing (emphasis added):
But media lawyer Justin Quill, director of Kelly Hazell Quill Lawyers, which represents News Limited (publisher of The Australian) and other media organisations, said a statutory right to privacy would "certainly lessen free speech in Australia". "Claiming we need a statutory right to privacy is just wrong. Australia already has an enormous number of laws that protect people's privacy," Mr Quill said. "Introducing a statutory right to privacy will affect the balance the law currently strikes between protecting people's privacy and freedom of speech."
The Australian also ran this editorial on Saturday in the same vein as the Merritt piece. Both  refer to "alternatives to a tort" that would still protect privacy "put forward" recently by Timothy Pilgrim, the Australian Privacy Commissioner. Perhaps some confusion evident here- Mr Pilgrim can speak for himself of course, but my guess is he like most would think a cause of action is no panacea, simply one of a number of mechanisms that need consideration in seeking to afford privacy appropriate protection. On Friday he welcomed the issues paper and said "the OAIC will make a submission outlining its views." The issues paper quotes from a 2007 submission by the office that stated "...a dedicated privacy based cause of action could serve to complement the already existing legislative based protections afforded to individuals and address some gaps that exist both in the common law and legislation."

Contrary to Merritt's assertion, the issues paper does refer to alternatives including leaving it to the common law. As to other possibilities, I'm assuming criminal laws and sanctions for imprisonment won't sound any more attractive to business or "the real targets",  the media:
Other legal remedies or mechanisms may provide more appropriate methods to protect privacy or influence behaviour than a civil mechanism such as the proposed cause of action. For example, criminal laws (and sanctions such as imprisonment), or data protection laws (and sanctions such as monetary fines), may be more appropriate to deter particular types of conduct than a civil cause of action.(P24)
Presumably with Merritt dismissing the need for any further discussion, that's it for the OZ Legal Affairs coverage at least. But wait... Nick Leys in today's Australian Media section thinks some colleagues may have scored an own goal last week: "..instances of the media behaving badly could not have come at a worse time for those fighting a tightening of privacy laws." Oh dear.

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