gazetteThe Australian Law Reform Commission has recommended the creation of a commonwealth statute to protect against serious invasions of privacy.  The proposed tort bears close comparison to the UK’s misuse of private information action, developed from Campbell v MGN ([2004] AC 457).  The full report is available here [pdf].

The ALRC’s cause of action would have five essential elements: to succeed, the plaintiff must show that the invasion (1) was caused by intrusion into seclusion or by a misuse of private information (2) occurred in circumstances where the plaintiff enjoyed a reasonable expectation of privacy (3) was committed intentionally or recklessly (negligence is excluded) (4) was serious (although need not cause actual damage; damages for emotional distress may be awarded) (5) was not outweighed by any countervailing public interest, such as the public interest in disclosure.

thumb2.phpThis latter element would require the court to engage in the same balancing exercise that the UK courts do so as to decide which the claims – privacy or public interest – is strongest on the facts.

As was made clear in the issues paper, the discussion paper and the final report, the inquiry was driven primarily by a concern – supported by stakeholder evidence – that the digital era provides new and widespread opportunities for serious privacy invasion that the law is inadequately equipped to deal with.

Such invasions may be the result, for example, of social media, data mining, CCTV or other forms of discrete surveillance.

Thus the ALRC has been keen to impress upon stakeholders and commentators that serious privacy invasions by the media are rarer and not a significant reason for enacting the tort.

Nevertheless, submissions made by or on behalf of the media suggest that this vital point has either been lost or otherwise ignored.

Instead, these stakeholders have been united by a common argument: first, that the tort is entirely unnecessary because the sort of shameless disregard for privacy evident in media practices in the UK is not apparent in Australian media culture; secondly, that enactment would seriously undermine press freedom.

For example, one commentator worried that the tort would generate so many legal actions against the media that “there is little doubt [it] would have a chilling effect”.

Obviously, there is a certain predictability about this type of frenzied reaction. The media is bound to feel threatened by a tort that might affect their activities, even if the concern is likely to arise more in principle than practice. Yet, by stubbornly resisting the chance to contribute meaningfully to the inquiry, has the media missed an important opportunity?

The strongest objections do not demonstrate any real engagement with the specifics of the ALRC’s recommendations and, instead, reveal little more than a pointed refusal to countenance the idea of privacy protection.

However, the coherency of the media’s position may be challenged. It seems that, so far as they are concerned, since there is no culture of privacy invasion in Australia, there is no reason to enact a tort that might affect them.

Concurrently, the privacy tort is seriously damaging to press freedom. It is difficult to square these two diametrically opposed positions.

If there is no culture of serious privacy invasion, then plaintiffs will be unable to pursue claims against the media, so where is the problem? How is press freedom seriously threatened by a tort that does not apply given the media do not do the things that the tort would guard against?

MediaGreater media engagement with the ALRC’s inquiry might have revealed the solution to this riddle.  As it is, a cynic may simply doubt the media’s strong denial that it does not seriously invade privacy since why else would the media be so concerned to object?

The media may be concerned by the prospect of unmeritorious claims draining their resources, which is understandable although an issue that could be diminished by active case management.

Moreover, this concern does not sufficiently comprehend the nature of the proposed tort in which most of the burden is on the plaintiff to establish their claim.

Thus not only must the plaintiff establish that they enjoyed a reasonable expectation of privacy, which has been seriously interfered with – a high standard of itself – but also that the public interest in the media’s expression does not justify that interference.

So not only is the media protected by the fact that, by its own admission, it does not readily engage in such privacy invasion, it is further protected by the structure of the tort which stacks the odds against the plaintiff and in its favour.

If anything, the ALRC’s proposals are too defendant friendly. This is not to say that the media’s concerns are entirely irrational. It is understandable that they should be concerned about the prospect of this statute.

As is well recognised in legal commentary, rights to freedom of expression are precarious in Australia.

UNSW emeritus professor Michael Chesterman memorably described it as a “delicate plant”.

There is no constitutional press freedom right per se. Instead, the courts have recognised an “implied right of political communication” although the significance of this “right” has been somewhat devalued by the court’s subsequent description of it as a limitation on state power rather than a personal entitlement.

Similarly, the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) has recommended the development of the existing breach of confidence tort to better protect privacy invasions but this tort contains no explicit public interest defence (see discussion in D. Rolph, M. Vitins & J. Bannister, Media Law: Cases, Materials & Commentary (OUP, 2010)).

Perhaps the media were concerned that the term “public interest” in the proposed statute may be interpreted narrowly so that frivolous, intemperate or irreverent speech would not be protected.

Arguably, such concerns, if they exist, are misplaced. The ALRC suggests that, in interpreting the provisions of the new statutory tort, the Australian courts might have regard to the UK jurisprudence.

Such an approach may benefit Australian media freedom. It is tolerably clear from case law, that the UK judiciary has interpreted the phrase “public interest” particularly generously.

Far from protecting only “serious” expression or expression explicitly related to democratic participation, the UK courts have recognised media rights to expose hypocritical behaviour by public figures (broadly defined) which misleads the public, to expose behaviour ill-befitting role models and the freedom to criticise the immoral behaviour of others.

Consequently, the media has been protected where it has exposed adultery, drug taking, etc. by celebrities.

The media’s apparent strategy of stonewalling the invitation to contribute to the debate on how serious invasions of privacy might be protected without unduly interfering with media freedom may yet haunt them.

Here was an opportunity to have public interest expression rights enshrined in statute and to contribute to the debate on how broadly that term should be understood.

Although the current government may do nothing further with the ALRC’s report, privacy remains a prominent issue in national and global politics and if not a future labour government then the Australian courts may well develop more responsive measures to tackle the problem.

Should that come to pass, the media may find it has no voice in matter and little protection besides.

Dr Paul Wragg is associate professor in law, University of Leeds and UK academic fellow of the Honourable Society of the Inner Temple, London.

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