gazetteThe ALRC report on Serious Invasions of Privacy in the Digital Era surprised no one by recommending an actionable tort of privacy … In this interview with Australian online media law publication, the Gazette of Law and Journalism (“GLJ”), the commissioner for the inquiry, Professor Barbara McDonald, reveals the forces at play and the thinking behind the report’s key features

GLJ: Thanks very much Barbara for your time. What evidence did you have that there are substantial invasions of privacy in Australia?

BMcD: I should point out that the terms of reference asked us to design a cause of action, rather than to go out and have a look again at whether one was needed – so we weren’t looking for empirical evidence of whether one was needed.

However, after the issues paper and many consultations and submissions, we asked people what sort of conduct should an action capture and what sort of conduct should it be careful not to capture; what should be outside an action and what should be within it.

Barbara McDonaldWe got quite a few submissions from people giving their experience. Funnily enough, we probably got more submissions from people complaining about next-door neighbours and surveillance cameras and things like that as a single topic than any other topic.

We also talked to women’s legal services and those sort of domestic violence services and they were very strong on the problem of revenge porn.

GLJ: Of course the timing of the report was perfect with the hacking of Jennifer Lawrence’s photos and distribution on the internet.

BMcD: That’s right. But almost every week throughout the inquiry there was another privacy issue coming up – whether it was the European Court talking about a so-called “right to be forgotten” or “right of erasure” or whether it was international terrorism national security laws and the metadata issues.

GLJ: We don’t actually know the shape of the metadata yet, do we?

BMcD: No. And we said right at the start that in the time we were given there was no way in the world that we could review all the ways in which law enforcement or security forces can invade privacy.

In our design of the cause of action there is a defence of lawful authority, but it’s up to the defendant to prove that they are within their lawful authority, so if they are outside it then obviously they would be subject to the action.

GLJ: There have been three previous reports on privacy…

BMcD: Yes, one from the ALRC, one from the NSW Law Reform Commission and one from Victoria. And now South Australia’s Law Reform Commission has launched an inquiry to whether that state should introduce a statutory right of privacy.

GLJ: Did you look at the option of just letting the common law develop?

BMcD: We did actually. We have a section at page 23 of the report dealing with the issue of whether to leave it to the common law or do it by statute.

I’ve been very cautious about the idea of the statute on previous occasions because I think there is a particular concern that if a statute was too broadly drafted we wouldn’t know where it was going to go or what it was going to capture.

I think that was part of the problem of previous recommendations – they simply left too much to be decided by the courts.

GLJ: A classic example is probably the Court Suppression Order and Non Publications Act where you have a fairly general piece of legislation, but it catches everything. Every day there are missives from the court saying this has been suppressed and that has been suppressed.

BMcD: And I’m sure that probably wasn’t the intention of the legislation.

But I think what happens is that if judges see a very broad power to do something they think, “Oh, the legislature is clearly telling me that I’ve got the power to explore this and to do it”.

We were very cautious about that. We’ve restricted what is an invasion of privacy to two types, we’ve suggested some issues that could be taken into account for public interest, we’ve said it has to be intentional or reckless and we try and give some guidance about what that means.

GLJ: So the two types of invasion are…

BMcD: Intrusion into seclusion is one, and disclosure of private information – those are the two key invasions that courts overseas have had to deal with.

That’s what people mainly complain about. We didn’t go along with the American approach of appropriation of image which can be a bit of an issue on Facebook because Facebook might take an image that someone’s got up there and use it to promote other things.

We’ve always assumed that the law of passing off would protect people, but you can only sue for passing off if you’ve got a trading reputation, so it doesn’t protect the ordinary person from the use of their image.

If that image is a private image, it would fall within disclosure of private information.

GLJ: No matter how tightly you try to confine the boundaries of the proposed new actionable tort of privacy there’s always the prospect that lawyers and judges will push it in other directions – like they’ve done with the Defamation Act. The legislative intention has been, in some respects, completely re-sculpted by the courts.

BMcD: That is possible, but our recommendation is to try and keep it fairly narrow at this stage.

For example, we say very explicitly that it should not extend to negligent invasions of privacy.

GLJ: You mean deliberate?

BMcD: Yes, deliberate or reckless. A lot of privacy advocates were very keen to see it extend to negligence because there are a lot of data breaches that are negligent, but our approach is that you have to look at this tort in the context of all the other things that go on.

A lot of information would be kept under contract, under obligations of confidence.

I mean all banking information – banks already have obligations of confidence, they have contractual remedies, they are subject to the Privacy Act and now the Privacy Commissioner has the power to give penalties.

The big problem is that most invasions of privacy – such as for Jennifer Lawrence – only cause distress.

That’s really the gap in Australian law that I think has been the most critical one.

GLJ: So the damages could be filed for distress?

BMcD: Yes. If you think of breach of confidence – there have been situations over the last few years where there have been “tell all” or “kiss and tell” revelations in pretty tacky contexts.

There was a case (and I don’t want to renew the invasion of privacy) where a television station showed a mother going to her daughter who had died.

That case was settled very quickly. These are cases where the probable result would cause very serious distress, but not a psychiatric illness and not personal injury.

The current law wouldn’t help and yet these are really quite serious invasions.

GLJ: So that’s never really been tested, because as you say, they tend to be settled.

BMcD: Yes, and very sensibly by the media, because they don’t want a precedent where they have really over-stepped the mark.

I’m waiting to see some legal response to the 2DayFM radio prank. There’s been no legal response yet.

The radio station is fighting all the way to the High Court on the issue of whether or not the ACMA even has the power to look at whether they have breached any laws.

I suppose you could say that if the media doesn’t invade peoples’ privacy, then this law is not going to be a problem for them is it? Which of course, I don’t feel is really the situation.

We were very conscious that we didn’t want to close down investigative journalism and we are very conscious that these sorts of laws, like defamation, can be used by the wrong people.

GLJ: There’s a bit of an overlap here with defamation.

BMcD: Yes, there is, particularly now that public benefit or public interest has been dropped from the truth defence – that’s really why the Defamation Act doesn’t protect privacy as well as it used to.

GLJ: What about the “serious” aspect of the invasion of privacy. Where do you draw the line? How do you draw the line?

BMcD: We said one way you could determine that is by determining if what happened was highly offensive to a person of ordinary susceptibilities on an objective standard.

Judges, I think, are used to determining whether something is serious. We meant that it should be something more than merely non-trivial.

We certainly feel that it needs to be at a higher level of seriousness than merely not a trivial thing, because otherwise we could have too many actions.

GLJ: What are the defences that you’ve considered in the report?

BMcD: Quite a few defences, but I should mention one of the very contentious features of our proposal, and now our report, is the fact that rather than putting public interest as a defence, we are putting it as something up front that has to be considered as part of the actionability of the cause of action.

In doing this we are, in a way, reflecting what happens in the UK. They have a Human Rights Act where the courts have to balance whether the public interest in freedom of expression outweighs the interest in privacy.

We don’t have a Human Rights Act but we are signatories to the International Covenant of Civil Rights – civil and political rights – which is where we say the Commonwealth gets its power to legislate and that does protect both freedom of expression and privacy.

We are conscious that there are many contexts in which there is simply a public interest in what is going on, either in the intrusion itself or in the disclosure.

Our view was because privacy is such a relative thing, we felt that the courts should have to consider the public interest right up front.

Many privacy advocates have said no, that’s not fair on the plaintiff, that should be a defence for the defendant to have to prove, as it isn’t really in defamation and it’s certainly not in breach of confidence in Australia.

But we’ve pushed ahead on that and said we think it should be literally part of actionability.

That means that the plaintiff wouldn’t have a cause of action and wouldn’t get to a remedy unless the court was satisfied that the interest in privacy outweighed the public interest in whatever was happening.

That’s a very important protection.

GLJ: That’s a threshold?

BMcD: That’s a threshold protection – rather than putting it as a defence where the plaintiff goes through all their case, strategically gets a win and then the defendant has to defend as they do in defamation.

On the other hand, we are conscious many people said that that’s not fair. Why should the plaintiff have to put up all the public interest points?

So we have suggested that the defendant have the burden to adduce evidence – to bring evidence before the court. If they want to argue a public interest point, they’ve got the evidentiary burden of getting it before the court.

In many cases that’s not going to be an issue. If a minister of the government is suing for invasion of privacy, the public interest issue is going to be there right up front anyway.

The other defences are consent … clearly consent is a very, very important defence.

The media were very keen that they should be able to rely on someone expressly consenting to something before they go on a television program and that it wasn’t to be something that was just put in the balance.

GLJ: It’s particularly relevant in reality television shows.

BMcD: Yes, and also it brings up an interesting issue in the context of social media – whether once you have given consent can you revoke it.

In other contexts you are allowed to revoke your consent and give the person a reasonable opportunity to withdraw whatever they are doing.

Obviously you can’t do that after the event, like a television show, but let’s say you have consented to someone putting something up on social media when you were 14 and then when you are 21 you realise this was a bad idea.

Should you be able to say I’m sorry, I revoke my consent for you to put that up and I would now like you to take it down?

That interrelates with what we’ve said about limitation periods. We’ve suggested that limitation periods shouldn’t run against young people until they turn 18, which would have the effect of allowing people, once they turn 18, to bring an action and get a remedy.

They wouldn’t necessarily get damages I don’t think, but they might get an injunction to have something taken down that they foolishly agreed to when they were 13.

GLJ: The first publication rule – what have you decided there?

BMcD: As you know from the Gutnick case, every time someone downloads something it’s another publication and therefore there’s a new action theoretically.

We suggest that serious consideration should be given to a first publication rule. It came up quite late in the piece and we simply didn’t have time to go into it in enormous detail, but we certainly suggested it.

The first publication rule was a very important for the media in the UK Defamation Act, which also has a new public interest defence instead of responsible journalism.

We really don’t have anything equivalent here. The UK also has a serious harm threshold in the new Defamation Act, which we don’t have. So we’ve got a bit of catching up to do.

GLJ: What about remedies?

BMcD: If you get over all the hurdles of intentional, serious, no public interest, then the tort should be actionable per se, like assault and battery.

You shouldn’t have to prove damage once you’ve gotten over all those hurdles.

That really is to allow people to recover from mental distress when it wouldn’t qualify as damage in the sense of psychiatric injury or illness.

If we require people to prove damage, it would be just like the common law where you have to prove the psychiatric illness.

And that’s not what most people suffer as a result of invasion of privacy.

We have suggested exemplary damages – which wouldn’t be popular with most defendants – but we have suggested them in exceptional circumstances.

We had in mind cases like Kaye v Robertson [1991] which is one of those classic privacy cases where Gordon Kaye from Allo Allo is lying in a hospital, and if people come in he’s not going to suffer any damage or distress.

Or imagine if somebody crept into a celebrity retirement home and took pictures of all these old people with dementia …

GLJ: The classic one was when the late Jeff Shaw, the judge, was in a rehabilitation clinic and a journalist inveigled his way in and did a weird interview – it was at the time that Shaw was facing some strife over the drink driving matter.

BMcD: Yes, we would say look at the state the person’s in. They may not appreciate and be distressed, either because of dementia or some other physical condition, but nevertheless we would say that’s not the sort of thing that should happen.

We are very conscious that just because there is a law doesn’t mean people are going to go around suing each other, but there is sort of a normative value of the law.

GLJ: Would you anticipate that the media would be the principal body of defendants in this jurisdiction?

BMcD: Yes, of course they would be. If they creep into someone’s funeral and those sorts of things.

GLJ: I notice the Press Council put a ruling out on funerals. It made a decision in relation to The Sydney Morning Herald attending a funeral where the Herald thought it had permission. Then the family complained and they got an adverse finding.

BMcD: I haven’t taken a role as a privacy advocate and I tried to make that point in our consultations.

It’s not the role of the Law Reform Commission to be advocating something, but sometimes I think they do go over the line.

Some media said that the fact there had been no action shows that this is not a problem in Australia. As I said, they get settled, but I also think it is very expensive for people to bring actions.

GLJ: Unless you’ve got the money and you’re a Max Mosley on a mission…

BMcD: Or a Naomi Campbell. Unless you really have that rage that you want to continue, and the resources and the time, they don’t want it.

If they can just sue for breach of confidence, which gives them a limited remedy on a decision that won’t be appealed, then they are happy with that.

GLJ: I think one of your recommendations was to attach some sort of equitable relief to breach of confidence.

BMcD: I’m glad you brought that up.

In Chapter 13 we say breach of confidence could do a lot of the work that a new tort of privacy could do as far as confidential private information goes – if we just allowed courts to give remedies for mental distress in a breach of confidence case.

That was done in Giller v Procopets in Victoria back in 2008, but there are quite a few legal question marks over that decision I think.

GLJ: And that wasn’t appealed was it?

BMcD: It wasn’t appealed, although the High Court didn’t give leave to appeal, which is interesting, but it hasn’t been applied again since.

So we suggest that courts should be empowered and then that would settle it, a little like Lord Cairns’ Act did over a century ago – it said you can do this which you couldn’t do before.

That would actually do a lot of the work. If you then coupled that with a Harassment Act which we discuss in Chapter 14 – which England and New Zealand have – that would also do a lot of the work of intrusion into seclusion.

There would be much more targeted ways of dealing with problems than a whole new, wholesale tort. So we do suggest those.

GLJ: One of the concerns I have is the remedy of injunction. Where there is a possible defamation, a possible breach of privacy and you have an interim injunction, plaintiffs will go for it.

They will get someone up in the middle of the night, they’ll go off to the court and they will stop the presses. It will take three weeks or more before the argument is sorted out, by which stage the story has probably gone cold anyway.

Eddie Obeid, for instance, could say I’ll go and get an interim injunction because these are privacy matters. Even though they may not be – but it’s going to take a while for the judge to come to that conclusion.

BMcD: Under the section on injunctions, we recommended that there be a provision like S12 subsection 4 of the Human Rights Act in England which says that where a court is considering whether to grant any relief that might impinge on freedom of expression the court must have particular regard to freedom of expression and so on.

In other words, directing the court that this is something that must be always up front.

We spent quite a bit of time in the discussion paper talking about what would happen if breach of confidence is allowed to develop, because there isn’t a strong defence of public interest in breach of confidence in Australia.

There is in England, but not in Australia. In Australia it’s more or less limited to iniquity – you’ve got to be revealing iniquity.

That was a bit of a disappointment to me in the process. I think because the media was so concerned not to go anywhere that they didn’t really see the gift that was being proposed to them in that chapter in the discussion paper.

What we were trying to say is, if there is no statutory tort and if Australian law, like England, develops breach of confidence rules to provide information where there was no pre-existing obligation of confidence, then we have to be much more ready than we have been to recognise that the public interest is a serious issue and needs to be weighed up at the injunction stage.

In other words, we said which way is the court going to go? Like ABC v O’Neil in defamation and say no, you can’t get an injunction or like breach of confidence, yes, we’ll give you an injunction.

GLJ: But they were getting injunctions in ABC and O’Neill all the way up and it was only some lowly judge in the Tasmanian Supreme Court who said we can’t have that published.

BMcD: That’s why I think we need something like s12 (4) of the Human Rights Act of the UK, which is what we were proposing for everything in the discussion paper.

In the report we proposed it only if a cause of action comes in. But I think there is a good case that we need it more generally.

It would really protect freedom of speech when on a serious matter of the public interest.

GLJ: What are those greater powers you’ve suggested for the Privacy Commissioner?

BMcD: They were suggested by the Privacy Commissioner.

They suggested that rather than looking at everything through a litigation prism – which of course is expensive – that if they had broader powers, the Commonwealth Privacy Commissioner could investigate serious invasions of privacy.

Then there would be more alternative dispute resolutions. The trouble is that there seems to be no appetite for the ACMA having broader powers.

Now that the office of the Privacy Commission has been disbanded and the Privacy Commissioner is going back into the Human Rights framework, then there could be a case.

The trouble of course with any greater powers for a regulator is that they have to have resources and you’ve got to get onto these things quickly.

Everyone said to us that in the social media context the best remedy for invasions of privacy is take down orders, get things off the web quickly and unless the Privacy Commissioner has got resources they are not going to be able to deal with those issues quickly.

There isn’t an appetite at the moment for giving public bodies more resources.

The thing about courts is that people can rush off to court and seek an injunction if they have got the where with all to do so.

It doesn’t help a lot of ordinary people, but it won’t help ordinary people if things take months to get through the Privacy Commissioner.

At the moment the Privacy Commissioner’s jurisdiction is very limited – it’s only big business over a million dollars and Commonwealth Government departments.

A small business, like your local gym for example, has all your credit card details. If they lose them there’s no obligation on them at all at the moment because they’re exempt from all the Privacy Act requirements and there is no appetite on either side of government to have more red tape.

But really I think we do need a bit more protection.

GLJ: What was the most difficult part of the process in developing the report?

BMcD: We were under time constraints for something that was quite big, and it got bigger every day with all the things that were happening.

I suppose engaging people in the process is always a challenge. Some media really engaged with us and came to consultations and put in very detailed submissions, which were incredibly helpful.

Others just put in very short submissions saying there are no invasions of privacy, there are no gaps, this is asking the wrong questions etc.

So what we did in the second round was to say, look there could be some advantage and nobody would be naive enough to think that privacy laws would stand still. It’s moved everywhere else, why would Australia stand still totally, so we’ll move.

One advantage of legislation over common law is that you can build in thresholds and caps up front, which you can’t do in the common law. We tried to engage people on that basis, but they didn’t always play.

GLJ: Is there a Commonwealth jurisdiction for this or does it have to be a national scheme with all the states?

BMcD: It comes in under where we are signatories to the International Covenant and there would be an external affairs power.

That’s what we’ve said, what our advice is, what has been said in the Constitutional section.

As you know, once we leave things to the states to do on their own it just is an absolute nightmare and the legislation relating to surveillance, listening devices, optical devices is all over the place.

The other very important thing that I would like governments to look at is Chapter 14 where we really have a very detailed look at surveillance devices and point out all the different things.

There has been a project with the states and the Standing Committee of the Attorneys General, and now the Standing Committee of Law and Justice to have uniform state surveillance laws since 2005 and look at them.

Here we are in 2014 and they are not remotely uniform.

You could be secretly recording me now and you don’t have to ask my permission – in Victoria. You couldn’t do it legally in NSW and we think it is silly to have such a different system.

So we’ve suggested that the default position be the NSW one, but there be very strong defences.

For example, if you suspect blackmail we have suggested a responsible journalism defence – that’s recommendation 14.05.

We’ve suggested the defence of responsible journalism for matters of public concern and importance, but not for trivial matters.

GLJ: Only in surveillance?

BMcD: Yes, as a defence to the offence of recording someone without their permission.

We do recognise that if we didn’t have that, how are journalists going to source police corruption or political corruption?

We understand that and I think it is really important.

GLJ: Thank you Barbara.

This interview was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication and is reproduced with permission and thanks.