gazetteBarrister Tom Blackburn SC reviews the current media and social media landscape and considers it is time for a “personally enforceable tort of privacy” – one which doesn’t discourage investigative journalism.

The level of offensive and worthless intrusions by the mass media into people’s private lives is probably no higher than it has ever been.

But those intrusions, together with sophisticated methods of surveillance, data collection, information storage and transmission, and the spread of private information by means of social networking, all combine to make a personally enforceable tort of privacy a highly desirable development in the law.

The ALRC proposal that such invasions should be prima facie actionable when “a person in the position of the plaintiff would have had a reasonable expectation of privacy, in all the circumstances” is a commonsense, workable starting point.

imageThe difficulties arise in trying to frame defences.

Criticisms of the mass media – newspapers, television, radio – for the careless and occasionally deliberate misuse of their great destructive power are often justified.

The critics, however, are generally unwilling to acknowledge the unpalatable fact that for all their imperfections, the independent news media are indispensable to the health of a democratic society.

Don’t take it from me. Milton said it 360 years ago. Sir Owen Dixon recognised it in McGuinness v Attorney-General (Vic) (1940) 63 CLR 73. Sir Frederick Jordan recognised it in Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242.

And while Heydon J memorably noted, in ABC v O’Neill (2006) 227 CLR 57 at 156 that the judges who decided Bonnard v Perryman “had just finished living through an era when the leading political journalists were Robert Cecil and Walter Bagehot”, no one would want to live in a society in which the independent news media were reduced to impotence.

But the independent news media are financially weaker now than they have been at any time in recent history.

They tend to be risk-averse and have nothing like the money they used to have to respond to litigation. That is a concern (and not just for lawyers).

Some years ago Eddie Obeid sued The Sydney Morning Herald for defamation. TheHerald lost on that occasion, stymied, as not infrequently happens in such cases, for lack of admissible evidence.

Obeid received substantial damages in compensation for having his excellent reputation besmirched.
The costs, of course, would have dwarfed the verdict. The paper had much more success in delving into the unsavoury matters that subsequently got an airing in ICAC.

If the independent news media get even weaker and more risk-averse, who is going to make these sorts of exposures in the future?

The big problem, then, is getting the balance right between the desirable introduction of some sort of privacy protection – to protect against gratuitous invasions of privacy that have no redeeming qualities – and the need to encourage inquiry.

This is where things get tricky.

The ALRC proposes a kind of threshold test for the operation of the tort:

“Where the court is satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest.”

This is similar to a test that applies in the UK, deriving from competing considerations in the European Convention on Human Rights and the UK Human Rights Act.

Its application does not involve a matter of discretion, strictly, but it’s a test that requires a significant value judgment and reposes something not dissimilar to a wide discretionary power in the judge.

That’s not of itself a bad thing, but one can see how easily, in a given case, the decision could legitimately, and probably unappellably, go one way or the other depending on the personal values of the judge concerned.

That strikes me as unsatisfactory, but I have no immediate solution.

Other defences are proposed, such as privilege, fair report, and a somewhat complex suggestion for a defence of lawful right of defence of personal property where such conduct was proportionate, necessary and reasonable.

Where all this goes is that, despite proposals to facilitate dispute resolution, litigation over an alleged invasion of privacy could well turn out to be just as complex and fact-rich as a defamation proceeding.

This is likely to discourage investigative journalism.

None of this is to criticise the excellent work done by the ALRC with this discussion paper, and it should be emphasised that that is what it is: a discussion paper.

More thoughtful discussion is needed before we impose on ourselves – as we should – a workable tort of privacy.

Tom Blackburn SC is a leading Australian media lawyer, pracitising at Banco Chambers in Sydney

This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.