Does Australia need a statutory right to privacy? – Justin Quill and Peter Bartlett

The statutory right to privacy is unnecessary. It will provide no added protection to the “average Australian” and will lead to more legal action primarily by the rich or famous.

And it will see free speech in Australia eroded – something which is obviously not good for Australian society generally.

A statutory right to privacy isn’t necessary because there are already so many restrictions on the media that provide the public with privacy.

To name a few, there is surveillance devices legislation, defamation laws, breach of confidence claims, trespass laws, family court laws, victims of sexual assault laws and children’s court legislation.

Individual privacy is protected through a web of laws already in existence in Australia.

In addition, the media landscape is very different to that existing in the UK.

There is an argument that privacy protection is necessary in the UK.

Indeed the News of the World scandal was one of the reasons put forward for the media inquiry in Australia and also used as a justification for the need for privacy protection in Australia.

That “justification” is simply not a legitimate one given the difference in culture within the media in Australia compared to the UK.

A statutory right to privacy will protect the rich and famous.

It is those people who will be most likely to bring action against media organisations. That is the experience overseas.

Cases like those brought by Naomi Campbell, Catherine Zeta-Jones or Max Mosley are the types of claims that Australia might be likely to see if a statutory right to privacy existed in Australia.

Whether to implement a right to privacy is of course a question of how any society balances two competing rights.

At present, Australia is ranked number 37 on the World Press Freedom Index.

At the risk of stating the obvious, it will not be a good thing for Australia to fall further down the Press Freedom Index if a right to privacy is implemented.

Peter Bartlett
Minter Ellison

The reality is that Australia has many laws that already protect an individual’s right to privacy.

This is in a multitude of areas including telecommunications, surveillance, data protection, children, victims of sexual assaults, family court matters, medical records, stalking, trespass and many more.
Furthermore, radio and television broadcasters have codes of conduct that contain privacy obligations.

These are required under the Broadcasting Services Act and are regulated by the Australian Communications and Media Authority.

For the ALRC to argue that there are gaps in these laws in unconvincing; the existing legal framework is more than capable of protecting individuals in appropriate circumstances.

The ALRC also fails to recognise that invasions of privacy are not such a big issue in Australia as they are in the United Kingdom or the United States.

It is important to keep in mind that privacy developments overseas come on the back of the phone hacking scandal in the UK.

Media culture is remarkably different in Australia and there is no evidence of such outrageous behaviour occurring here.

While Australia has seen a number of high profile and improper things being published they are few and far between.

The number of complaints to the Australian Press Council and the Australian Communications and Media Authority and the number of court cases related to breach of privacy simply do not justify the introduction of such a far-reaching claim.

As a UK Parliamentary Committee found last year:

“The concepts of privacy and public interest are not set in stone and evolve over time.

We can conclude 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.”

The Committee noted quite correctly, that these rights are equally important and that the courts can apply the balancing acts on a case-by-case basis.

The ALRC discussion paper recommendations are likely to lead to many legal actions against the media.

There is little doubt that this would have a chilling effect on the media. It will not protect the interests of a vast number of Australians who would not take action and incur significant legal costs.

Such legislation would upset the present balance between freedom of speech and a person’s rights to privacy. Thus any extension of the right to sue for a breach of privacy should be left to the court.

The courts are best placed to balance the interests of privacy and freedom of speech in any given situation.

If the Australian government was to accept the recommendations of the ALRC it would be like cracking a nut – a small nut – with a sledgehammer.

These articles were originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.