The common law protection of privacy has been slow to develop in Australia … Media law academic Dr David Rolph suggests this has everything to do with different media environments and, critically, with whose privacy is at stake.
There is another test case on privacy before an Australian court. A judge in the District Court of Queensland refused to strike out claims of breach of confidence and invasion of privacy brought by a father and daughter against Yahoo!7.
The case arises out a fake internet profile which the plaintiffs claim was used to impersonate the daughter and to post offensive and abusive material online.
If the case proceeds, it will be one of the very few that has.
Since the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) which had some tantalising dicta suggesting that the common law might develop to recognise some form of direct privacy protection, there have been only two cases that have done this: the decision of the District Court of Queensland in Grosse v Purvis (2003) and the decision of the County Court of Victoria in Doe v Australian Broadcasting Corporation (2007).
Two cases in twelve years suggest that there is not a lot of impetus for common law protection of privacy.
A number of submissions in response to the Australian government’s issues paper on a Commonwealth statutory cause of action for serious invasion of privacy in late 2011 suggested that this lack of common law development indicated that invasions of privacy were comparatively rare.
There is a different inference that can be drawn from the small number of cases on privacy.
One of the significant common features of Grosse v Purvis, Doe v ABC and Doe v Yahoo!7 is that the plaintiffs are all private individuals. None of them is a celebrity.
By contrast, celebrities feature prominently in the rapidly developing English law on the tort of misuse of private information.
High-profile litigants include Prince Charles, Michael Douglas and Catherine Zeta-Jones, Naomi Campbell, J.K. Rowling, Elton John (pic) Max Mosley and, of course, a long list of footballers, including Gary Flitcroft, John Terry, Ryan Giggs and Rio Ferdinand.
Some of these plaintiffs have been successful, others have not. Nevertheless, it is clear that celebrity plaintiffs are driving English law.
The absence of celebrity plaintiffs in Australia seems to be a significant reason why there has not been any real impetus for common law development of privacy.
Few private individuals would have the resources or the inclination to pursue a novel claim for invasion of privacy through the courts.
The fact that celebrities are unwilling or uninterested in suing for invasion of privacy is not necessarily a bad thing.
If celebrities are the main plaintiffs bringing cases, there is the potential for distorting the principles that develop to protect privacy. Celebrities often have a commercial interest in their private life, in a way that private individuals do not.
The case brought by Michael Douglas and Catherine Zeta-Jones against Hello! magazine for the unauthorised publication of photographs of their wedding is a good example of this.
Also, public interest considerations are more likely to arise in relation to claims brought by celebrities, by virtue of their public profile. A privacy law developed by celebrity plaintiffs is likely to be different from a privacy law developed by private individuals.
There is the interesting question as to why Australian celebrities have not sued for invasion of privacy in the way that English celebrities have.
One significant explanation is the different media environments in England and Australia.
As the Leveson Inquiry brought home, there is, in England, a thriving “red-top” newspaper culture which is competitive, lucrative and reliant upon stories which invade the privacy of celebrities, their families, friends, lovers and hangers-on.
The major cases in England developing the tort of misuse of private information largely concerned publications in tabloid newspapers, such as The Mail on Sunday, The Daily Mirror, The Sunday Mirror, The News of the World, The Sun, Sunday People.
This has no analogue in Australia. Notoriously, there is less diversity of newspaper ownership in Australia, thus less competition.
The Australian market is also much smaller than the English market and more geographically diffuse. The relative size of the Australian market has an impact on whether media outlets routinely invade the privacy of celebrities.
Regularly invading celebrities’ privacy in a small media market does not make much commercial sense. (Occasionally might be a different matter.)
In the main, there is an interdependence between the media outlets that rely on celebrities and the celebrities themselves. Women’s magazines and the gossip pages of tabloid newspapers need copy; C- and D-list celebrities need profile and income-earning opportunities from interviews and the sale of photographs to these outlets.
It is in their mutual interest consensually to commodify minor celebrities’ privacy. As for serious A-list celebrities, it does not make much commercial sense for media outlets to invade their privacy – not if the media outlet does not want to be the only one to miss out on an interview with Cate Blanchett/Russell Crowe/Hugh Jackman/Nicole Kidman when there is a new film to promote.
In a smaller, interdependent media market like Australia and in the absence of a tabloid newspaper culture, it is unsurprising that celebrity plaintiffs have not been at the forefront of developing privacy protections in the way that they have in England.
This leaves private individuals who feel that their privacy has been invaded to bring periodic test cases to see if the law will develop some cause of action to remedy their concerns.
English and Australian privacy law are likely to develop differently.
An important and obvious reason for this is that the Human Rights Act 1998 (UK) incorporates the European Convention on Human Rights into domestic law, whereas Australia has eschewed introducing any form of comprehensive human rights protection.
The English law of privacy, as it has developed, has been prompted by that country’s human rights obligations.
There is a further reason for Australian courts and legislators to be cautious when dealing with the English law of privacy.
The differences between media environments in England and Australia mean that the principles under English law which have developed to deal with media practices in that country may not necessary be appropriate and adapted to Australian media practices.
*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).
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media and law publication.