A law of privacy in Australia is a strong possibility following the News of the World phone hacking scandal. Media law academic Dr David Rolph outlines the issues that demand consideration – in particular the impact on defamation law

Over the last few years, three law reform commissions in Australia have recommended, in varying ways, that statutory causes of action for invasion of privacy be introduced.

These recommendations have met the not infrequent fate enjoyed by law reform commission reports of being ignored by the legislatures to which they were directed.

The Australian Law Reform Commission’s recommendation of a statutory cause of action for invasion of privacy seemed as if it were going to share in that fate, until the News of the World phone-hacking scandal and its fallout presented the federal government with an opportunity to revisit the issue.

Last week, the Minister for Home Affairs, Justice, Privacy and Freedom of Information, Brendan O’Connor (pic) announced the government’s intention to examine whether a statutory cause of action should be introduced and promised another issues paper followed by a further consultation period.

Until recently, it seemed equally unlikely that Australia would develop a common law or a statutory cause of action for invasion of privacy.

It has been ten years since the High Court of Australia’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, with its dicta considering the possibility of some general law protection.

Only two subsequent cases took up these dicta to find that there was a cause of action for invasion of privacy as part of the common law of Australia – Grosse v Purvis in the District Court of Queensland and Doe v Australian Broadcasting Corporation in the County Court of Victoria.

Superior courts were less convinced that ABC v Lenah Game Meats was an invitation to develop the law in this way.

So, given the renewed interest in privacy by our legislators, if there is going to be a statutory cause of action, what issues need to be considered?

One major issue that should be of concern, and which does not receive the attention that it should, is how a statutory cause of action will interact with the existing law of defamation.

The processes for developing and reviewing the national, uniform defamation laws and considering a statutory cause of action for invasion of privacy have been conducted separately.

The Australian Law Reform Commission’s 1979 report, Unfair Publication: Defamation and Privacy is an exception to this.

Yet the nature of the interests involved in defamation and privacy and the different ways in which they have historically been treated by the common law suggest that it is important to be mindful of the impact on defamation law when developing a law of privacy.

The principal interest protected by defamation law is reputation. Reputation is essentially a person’s public self. It is a personal, dignitary interest.

For centuries, Anglo-Australian defamation law has set a high value on a good reputation. Equally, over that period of time, the common law has not protected privacy at all.

Yet, privacy is also a personal, dignitary interest, but different from reputation. If one were devising a system of law from scratch, privacy would be protected – and arguably more highly than reputation.

Given that reputation is a person’s public self, there is a public interest in discussing a person’s reputation.

This has been consistently recognised by courts – it is frequently stated that defamation law seeks to strike a balance between protecting reputation and facilitating freedom of speech.

There may be public interest justifications for disclosing aspects by a person’s private life but, in the absence of them, the competing public interest in freedom of speech is not implicit in privacy in the same way it is in defamation.

However, in looking to enact a statutory cause of action for invasion of privacy, one is not confronted by a tabula rasa.

In conferring on individuals a new right to sue for invasion of privacy, striking the right balance between personal privacy and public interest considerations will be important.

In striking this balance, though, it is important to bear in mind the way in which the balance between reputation and public interest considerations are struck in defamation law.

There are two ways in which the interaction between defamation and privacy are particularly important.

These relate to the possible defences and remedies available for invasions of privacy.

The various proposals by law reform commissions in Australia for a statutory cause of action all contemplate defences based on public interest considerations.

However, there should be some reservation about how effective such defences would be in practice. The relative lack of success of defamation defences, particularly those based on reasonableness of publishers’ conduct, should be noted.

It would undesirable to confer additional rights on individuals to sue for interference with their dignitary interest in personal privacy without ensuring that public interest defences would be effectively considered and applied.

The other issue which requires close attention is that of remedies.

Should the principal remedy for an invasion of privacy be an award of damages, as is the case for defamation, or should an interlocutory injunction be available to stop an intrusive publication?

Defamation law has long struck a balance between the rights of plaintiffs and defendants that has prevented plaintiffs in most cases from obtaining an injunction prior to publication – defendants are free to speak but if they defame, they expose themselves to liability.

If privacy allows plaintiffs readily to obtain an injunction, this may subvert the balance underpinning defamation law’s approach to injunctive relief.

This is particularly likely if the proper scope of privacy and defamation is not defined.

Defamation is concerned with what is true and false. Privacy should be concerned with what is private or not. But can there be such a thing as “false privacy”?

If there is not, then defamation and privacy operate in distinct spheres. If there can be, how will defamation and privacy interact?

The vexed issues of injunctive relief and “false privacy” have generated case law and commentary in the UK – though no definitive solution.

Australian law reformers will need to consider these issues carefully.

The historical failure to protect personal privacy in a comprehensive way is a gap in Australian law which should be remedied.

However, in reforming the law to protect privacy, close attention should be given to the impact on defamation law, lest unintended and undesirable consequences ensue.

Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).

The Gazette of Law and Journalism is Australia’s leading online media law journal. It has, since 1986, been covering court cases, legislation and policy issues that affect the media. It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.