Australia: Question Time – Interview with Peter Bartlett

Minter Ellison partner Peter Bartlett has been at the top of the media law game for decades, instructing an enviable list of media companies. He agreed to share his thoughts on many matters – including defamation, privacy, phone-hacking, media regulation, protection of sources, super-injunctions, suppression orders and the vexations of anti-discrimination legislation

GLJ: In the last 12 months we’ve had the Finkelstein Report, the Convergence Review Report, proposals for a tort of privacy and for a new National Human Rights and Anti-Discrimination Bill. Is freedom of speech under threat in Australia?

PB: Well first of all let me say that I find it difficult to get too excited about the Finkelstein Review, the Convergence Review, the ALRC reports, because I think we’ve seen so many reports produced over the years that are gathering dust and never go anywhere.

If and when we see proposals from the Minister for Communications I think that’s the time to get excited and look at them and form a view on them.

I think if you look at freedom of speech, the threats come more in the area of suppression orders, super-injunctions, disclosure of sources and I think we are seeing more applications for disclosure of sources – we have one coming up very soon – and also in the defamation area with multiple proceedings seeking multiple caps for basically the same article.

GLJ: Where do you think the Finkelstein Report is at in the mind of the government at the moment?

PB: We’ve heard no announcements so far, we now have an election on 14 September and parliament resumes very soon.

I would have thought if the minister is going to make any announcements it will be very, very soon, otherwise it’s getting too close to an election and clearly the media will look closely and aggressively at any proposals and with this government already having some problems, why would it create further problems with the Australian media?

GLJ: Putting the politics aside for a moment – can the media can be trusted to behave in an ethical manner by way of self-regulation? Do we need a National Media Council?

PB: I think you need to reflect very, very carefully on the situation in Australia and the situation in the United Kingdom.

Lord Justice Leveson was appointed at a time when there were revelations of outrageous behaviour and in the hacking type areas and a number of other areas.

When you look at the situation Ray Finkelstein looked at and when you look at the Convergence Review, they were looking at a system that actually works pretty well.

There isn’t the evidence in Australia that there are huge lapses in ethics by the media.

We have seen a number of high profile unfortunate publications, but they are pretty small in number.

So I don’t think that we have seen the number of complaints that would justify drastic media regulation and certainly not statutory intervention.

I’ve been around for a long time, I have dealt with reporters all of my career. I have never seen any evidence of illegal phone tapping of computer hacking – I’ve never seen that sort of thing go on here. I don’t believe it goes on.

GLJ: Back to Leveson – you wrote about the difficult balancing task he faced. What’s your overall view of what he finally recommended?

PB: I should say that I, in my capacity as chair of the Centre for Advanced Journalism at Melbourne Uni Advisory Board, jointly wrote to Leveson.

I initially suggested that he be invited to come to Australia and to some degree that was dismissed as a million to one chance. But we actually wrote to him, I wrote jointly with the CEO, and he accepted.

I have met him twice in his chambers in London, I have spent of a lot of time with him in Australia, I’ve had a lot of email traffic with him, a lot of phone calls with him and I have the greatest respect for him.

He came out with some 90 recommendations and it was very much in his mind that he wanted to produce a report that wouldn’t gather dust on the shelves.

And he was under great pressure because it was in a situation where there was the evidence of hacking.

I think there are something like 5,000 potential people who have been hacked, there are 300 phone hacking claims, millions of pounds have been paid to settle cases, at least 50 people have been charged.

So it’s a totally different environment and he had that huge pressure from the victims, from the victims’ lawyers and celebrities and others to bring in recommendations for significant media regulation.

On the other hand, he had significant pressure from the media who he knew would oppose any sort of stronger media regulation.

And then he had the politicians from the various parties in London who were all over the place. So it was a difficult environment. He brings in 90 recommendations.

For the environment he was in, they’re reasonable moderate.

I of course, don’t like any suggestion of statutory intervention, I am very hesitant about any media regulator being able to tell an editor what to publish, where to publish and those sorts of things – I am very nervous about any regulator having the power to fine and have penalties.

So I have concerns about all those sorts of things but he, like Finkelstein and like the Convergence Review, are very interested in lowering the cost of complaints and making the resolution of complaints faster.

I think that that’s something we would all encourage, but of course the devil is in the detail and there is quite a few devils in the detail.

I have the greatest respect for him and I think that even the British media have accepted 70 out of 90 of his recommendations or a large number of his recommendations so far, so that shows that they are reasonable I think.

GLJ: Many of the complaints in the UK were about invasion of privacy. In Australia we don’t have a statutory tort of privacy. Do we need one?

PB: We do not need a statutory tort of privacy. I think that again, there are a number of points.

There was a very interesting report last year from a UK Parliamentary Committee which said that for the UK they should not have a statutory tort of privacy, that it should be left to the common law.

And they said that the concepts of privacy and the public interest are not set in stone and evolve over time. They concluded that the current approach where judges balance the evidence and make a judgment on a case-by-case basis provides the best mechanism for balancing privacy and freedom of speech rights.

So you look at that and say it’s like our constitution in Australia – our constitution is set in stone and totally out-of-date and if you re-wrote it today a lot of the provisions would be different.

You set a privacy tort, put into a statute and it’s set in stone, its difficult to amend.

Our views on privacy change over time and the common law can change over time.

GLJ: Of course they change according to developing technology as well …

PB: Well, I think that’s a significant thing because if you created a statutory tort of privacy 20 years ago, how would it cope with the online publications that we’re got these days – social media, Facebook and all of those sorts of things?

I think you also need to look at the situation in the UK and Europe where they have protection for human rights and they have protection for freedom of speech.

We don’t have that to the same degree here so it’s a different situation.

If you look at the complaints to the Australian Press Council, to the Australian Communications and Media Authority relating to privacy, they are very few and far between.

GLJ: But some of them are glaring.

PB: Some of them are glaring and there have been some terrible, terrible examples.

GLJ: What would you regard as a serious invasion of privacy?

PB: Well something like the Duchess of Cambridge where photographs are taken from a couple of kilometres away, I think is totally inappropriate.

I think the minister in Sydney coming out of an establishment was inappropriate but the difficulty is in defining just how wide a tort would be.

I think Europe goes too far in saying that Princess Caroline who was having a coffee in the equivalent of the Champs Elysee in Germany had her privacy breached by photographs being taken.

I think if you’re in Pitt Street in Sydney or Collins Street in Melbourne and you have your photograph taken then so bit it. That’s not a breach of privacy.

Prince Harry, I don’t think is a breach of privacy – well it is a breach of privacy but

GLJ: But didn’t that occur in a hotel room, at a private gathering in a hotel room?

PB: It occurred in a private hotel room with a gathering but we need to realise we are in a new environment, an environment where everybody has mobile phones, everyone can take photographs on their mobile phones and if you get into that sort of activity, you have to realise that there is a prospect, if not a significant prospect, that your photograph will be taken.

GLJ: So if you are in the private situation with one other person, you are not private?

PB: No, I think that things relating to health, things that relate to things in your private home, those sorts of things should be confidential but it concerns me that the drafting of any legislation would be far too wide.

You look at the Australian Law Reform Commission and it’s all over the place.

We have the Australian Law Reform Commission, we have the NSW Law Reform Commission, the Victorian Law Reform Commission all come out recently (or in the last couple of years) and recommend a statutory tort.

The ALRC in 1979 recommended a statutory tort but they were conscious of the public interest.

In 1983 the ALRC came out and said that they didn’t recommend a statutory tort and again were very conscious of the public interest and said any law would be too vague and nebulous.

Then we get this report more recently where they recommend a statutory tort and don’t recommend a public interest defence. Well that’s extraordinary.

GLJ: How do you account for that shift?

PB: Different personnel on it. I think that those three ALRC, NSW/Victoria Reports are wonderful in setting out the history of privacy law in Australia and in the major jurisdictions overseas.

Then they recommend a statutory tort but they don’t explain how they get from what’s happening overseas and the history of privacy in Australia to the fact that we need a privacy tort.

For the ALRC to come out and not recommend a public interest defence, I just find incomprehensible.

GLJ: Is the notion of a privacy injunction is intolerable as well?

PB: Fairfax in Victoria has had two super injunctions in the last month and as super injunctions both of them were suppressed.

They were for breach of confidentiality. We all know that it is basically impossible to get an injunction for defamation because the courts say that for freedom of speech reasons where damages are an inadequate remedy, there should be no injunction for defamation.

It is easier to get an injunction for breach of confidentiality, it would be even easier to get an injunction for privacy – breach of privacy, but the important thing is it is not the ordinary citizen who would be taking advantage of that privacy tort, it would be your wealthy celebrities.

Any tort of privacy would be more to the advantage of the rich and famous, your wealthy business people, your wealthy celebrities, your politicians.

It’s not the ordinary citizen who would be able to take advantage – and would take advantage of it.

GLJ: In Victoria at least, there has been a noticeable rise in suppression and internet take-down orders. How do you see this stand-off between digital media and the courts playing out?

PB: It is very easy for courts to issue a suppression order against the mainstream media, because the mainstream media will always obey those injunctions or take-down orders – we saw it in Mokbel in Victoria where the Supreme Court ordered that all historical articles be taken down by The Australian, The Herald Sun and The Melbourne Age, and of course they took them down.

But it was a silly order because there were still hundreds of thousands of articles relating to Mokbel online.

So we took it to the Court of Appeal and they took the view, as they did in Ibrahim in NSW, that the court should only make an order that it can enforce and it can not enforce a take-down order against online publications that are outside the jurisdiction.

And there is also a recognition by the Court of Appeal in Mokbel and the NSW Court of Appeal in Ibrahim that is now in legislation that it is an offence for a juror to access the internet in relation to a matter then before them.

In addition to that, the trial judge gives a warning to the jury and so if we’ve got any trust at all in the jury we would expect them not to access the internet on matters relating to what’s before them.

And that should be sufficient. So we should not have in the future courts making orders, general orders, for take-down of all historical material.

There was an interesting comment by the Victorian Chief Justice in Mokbel in the Court of Appeal.

He said where there had been suppression orders in the past, no one has ever contemplated a public library would go and hide copies of The Sydney Morning Heraldor The Melbourne Age because there is some suppressed article in it.

It’s never been contemplated and it should be similar in relation to what’s online.

GLJ: That’s a really good point. I wanted to ask you about the recent amendments to the Journalists’ Shield Laws. Two journalists from The Age are currently facing the prospect of spending some time at Her Majesty’s pleasure.

PB: Those same two journalists are facing two challenges.

One of course in Sydney relating to Helen Liu, a Chinese businesswoman, and then in Melbourne relating to the Securency matters.

We have had legislation introduced federally, it’s in NSW and Victoria, but unfortunately the Victorian legislation came into force on 1 January 2013 and is not retrospective so it doesn’t protect these reporters in relation to the proceedings which were issued against them in December 2012.

But it’s a positive step, it’s a step in the right direction.

There is still a power in the court to say that it’s still in the public interest that a journalist be asked to disclose and it is hard to argue that there should be a blanket protection in all circumstances.

But it’s a huge freedom of speech issue because sources will not disclose material to reporters if they believe that that reporter will then get in the witness box and disclose their identity and there is a lot of material that has been published over the years which is material that the public has a right to know but we would never have heard of unless a particular source was prepared to talk to a journalist.

GLJ: Indeed, look at what Bradley Manning is facing in the United States. Do you think Wikileaks is journalism, or is it something different?

PB: I doubt that it’s journalism and I say that with some hesitation knowing that Julian Assange was the guest speaker at the Walkley Awards in 2011, but I have my doubts.

I personally think about journalism as involving writing and creative preparation of material – not just being leaked material and putting it on the internet with no editorial input and potentially without properly worrying about the consequences.

GLJ: The 2005 Defamation Act has had plenty of time to settle in – what do you think are its strengths and weaknesses in practice?

PB: I think the huge positive is that it’s uniform throughout the country with some very minor differences.

It’s not perfect, it’s a long way from perfect, it is far more pro-plaintiff than we see in most major jurisdictions overseas. I think even more pro-plaintiff than that in the UK.

GLJ: The plaintiff barristers might argue that a cap on damages is not very pro-plaintiff.

PB: The cap on damages is now up to about $350,000 I think, which is a pretty significant amount of money and the plaintiff’s media lawyers do quite well financially from the costs angle, so I’m not sure I’ve got too much sympathy for them.

I think the weaknesses, and I think there are many, the multiple actions that are being issued against the media for basically the same article, simply to get multiple caps is a problem.

I think that the online environment is a problem in that there is no statute of limitations – there’s no limitation periods so proceedings can be taken at any time.

The complexities – it is far too complex in the procedural and court environment.

And I think that the costs are far too high, the delays in litigation are too long.

Some would argue about the corporations not being able to sue, that’s something I recall having very detailed discussions with the Commonwealth Attorney General at the time.

But the whole Act is a compromise and it’s a pretty good compromise when you think of what we had before.

GLJ: So you weren’t a fan of the 7A system?

PB: A lot of Sydney media lawyers acting for defendants have told me that they never liked the 7A procedure.

I must admit I quite liked it because we had a large number of successful results from the 7A procedure and it cut those actions off at a reasonably early stage – so to that degree it was a positive, in that it brought actions to an end far sooner than otherwise they would have been.

GLJ: A final question. What do you see as the biggest challenge facing mainstream Australian media?

PB: It’s a difficult question and I think the answer is possibly not the answer that you would expect.

I see it as relating to relevance. Mainstream media needs to ensure that it is still relevant to consumers in circumstances where so many of the younger people are now looking online to Tweets and Facebook and blogs etc.

I think another huge challenge is to find a new business model that works. We have seen for many years the “rivers of gold”, the “rivers of gold have gone” – they’ve gone for all time.

And it’s not unique to Australia, every major media company anywhere in the world has exactly the same problem and I don’t think anyone has actually found the proper business model so far.

I see another huge issue as maintaining quality with less resources. Every major media company has huge challenges and are dropping workforces and are finding it hard to keep up the quality, but it is essential that they do.

I think there are some challenges relating to freedom of speech and we need to look at those if there are media regulation proposals, if there are privacy type proposals we need to look at those significantly.

I think the discrimination proposals we’ve seen recently are a significant problem.

The present anti-discrimination legislation we’ve got is a significant problem for the media, in that we’ve had articles on paedophilia and we get a discrimination complaint saying that it vilifies all Roman Catholics; we get one about a Turkish guy who’s had a run-in with the police, and we get a complaint saying it vilifies all Turkish people.

They go too far some of these complaints and the problem with the regulatory authorities, whether it’s the Commonwealth or the State, they will not make a finding that a complaint has little merit.

They will drag you in and you have to respond to these complaints in writing and then you need to go to a mediation and you spend so much time at these mediations and then if you don’t resolve the complaint at mediation the complainant can go to (in Victoria) VICAT- to court and it’s very costly.

Some of these complaints are ludicrous.

GLJ: And you are getting more of them?

PB: There are more and more of them. Regulatory authorities are not looking at them and saying this clearly has no merit and should be dismissed. It is very frustrating.

GLJ: Thanks for doing the interview Peter, and for your time.

This interview originally appeared in the Gazette of Law and Journalism– Australia’s leading online media law journal.