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.)