Coronavirus, Media Reportage and Patient Privacy – Jelena Gligorijevic

7 03 2020

How does the law protect the privacy of individuals infected with a novel, rapidly spreading virus, against intrusive media reportage? In some common law jurisdictions, including England and Wales, and New Zealand, tort law offers some protection, and media ought to bear this in mind. In others, including Australia, such protection against intrusive media activities per se has not yet been recognised by the courts.

Public health crisis and media reportage

As Covid-19 spreads across the globe, individuals are instructed to report if they have symptoms, and states are to varying extents keeping a record of the number and circumstances of cases of infection. So much can only be expected of states and global organisations which are responsible for the containment and combating of such a threat to public health (not to mention economic stability).

It can also only be expected that an issue of such high public interest and public concern should be reported on widely and in depth by the news media. Media have even moved beyond ‘mere’ reportage of fast developing events, to launching issue-specific podcasts: the BBC has a Coronavirus podcast (here), and the ABC as ‘Coronacast’ (here).

In this context of global public interest in and reportage on such a significant issue, we might ask: what of the many individuals who have already contracted the virus?

On the one hand individuals contracting the virus are the very crux of this global public health concern, the reason but for which the concern would not have arisen at all.

On the other hand such individuals may easily become de-personified cases of infection, whose interests and rights might be set to one side as such cases are quantified and as the public seeks to know exactly where and how the latest infection has occurred. There is, after all, an interest in protecting yourself and your community from infection, and the more known about established cases, the better.

This utilitarian approach to the sharing of information about cases of infection is not surprising, therefore, in the context of a global public health crisis. And media would rightly feel a responsibility to report on cases of infection.

Individuals’ private lives

There are, however, ramifications for affected individuals of such reportage, especially in countries where the numbers are low: the second case of infection in New Zealand recently saw the individual affected and her family suffer targeted and sustained online abuse after mainstream media reported on her travel history, city and suburb of residence in New Zealand, and her children’s schools (here , here, here, and here).

Depending upon the nature, degree and persistence of any such online abuse (or indeed offline abuse), legal remedies in harassment might be available to individuals in such circumstances: see the Harassment Act 1997 (New Zealand); the Protection from Harassment Act 1997 (United Kingdom); and, in Australia, criminal sanction is provided for in Commonwealth, and State and Territory statutes (for example, Criminal Code (Cth), s 189; Criminal Code Act 1899 (Qld), s 395B; and Crimes Act 1958 (Vic), s 21A).

But can privacy law intervene to protect such individuals before their private information is publicised, enabling such online abuse to occur? The answer, in some but not all jurisdictions, is ‘yes’ – or, at least, for those jurisdictions, the answer is not a categorical ‘no’.

Informational privacy law

England and Wales

In England and Wales the tort of misuse of private information requires an individual establish a reasonable expectation of privacy (REP) over the relevant information. Medical information would almost certainly pass this threshold (see: Campbell v MGN). Information publicly identifying an individual (such as their name, place of residence or travel history) in the context of their having reported medical symptoms during a public health crisis information, might also pass this threshold, given the REP test is a holistic one, taking into account all of the relevant circumstances, including the nature of the information and the particular plaintiff’s circumstances and interests (see Murray v Big Pictures Ltd).

If there is a REP, the tort’s second and final stage involves an “ultimate balancing test” to be conducted between the plaintiff’s right to a private and family life (in line with article 8 of the European Convention on Human Rights) and the media defendant’s right to freedom of expression (article 10 of that Convention, and specifically protected in the Human Rights Act 1998, s 12, regarding injunctive relief) (see Re S (A Child)). Any interference with either of the rights must be proportionate, or that which is necessary in a democratic society (see Campbell v MGN). This exercise also involves considering whether reportage would be in the “public interest” (see Browne v Associated Newspapers Ltd; and PJS v NGN Ltd).

The courts have previously held that some information within a single media story or publication is too intrusive and not relevant to the public interest, whereas other information in the same publication may be published in the public interest: in Campbell, the House of Lords reasoned that some private information (the fact the plaintiff had taken drugs) was lawfully published because it contributed directly to a public discussion which the plaintiff herself had opened up about her drug-taking habits (denying she had any), whereas other private (medical) information (details of her rehabilitation) was more intrusive and not necessary for that public discussion to be pursued. Further, in PJS, the Supreme Court highlighted the intrusive harm of publicity given to information that identifies an individual (that is, their name) with respect to highly sensitive personal information relating to their sex life: such harm was so significant in that case (in which the plaintiff was a well-known public figure) that, in spite of the plaintiff’s identity already having been available online in the context of that sex-life story, the press defendant was prohibited from on-publishing it, including in print.

The law is, therefore, capable of triaging private information that it is in the public interest to publish from private information that it is not in the public interest to publish. Therefore, certain information about an individual infected with Covid-19 might be publishable (for example, travel history, city of residence), but other information might be too intrusive relative to the public interest (for example, name, place of work, children’s school).

In the end, the question ought to be: given the context of a novel fast-spreading virus and subsequent public health crisis, what information should members of the public have about already infected individuals, for the purpose of being able to decide how to act to protect themselves from the virus? The extent to which the state provides information and guidance to members of the public may be relevant here: the clearer the information from the state, the lower might be the public interest in knowing the details about particular cases.

New Zealand

In New Zealand, the tort of wrongful publication of private information may also offer protection from intrusive media reportage (see Hosking v Runting). This tort also requires a REP threshold be passed. Recently, a High Court Judge applied the holistic approach taken by the English courts to find a REP for the plaintiff’s name, passport details and residential address, in the context of media reportage of an overseas police investigation into serious criminal allegations made against her (Driver v RNZ Ltd).

The New Zealand tort, unlike the English tort, also requires the publication be highly offensive to a reasonable person in the plaintiff’s shoes (see Henderson v Walker). In Driver, publication of the plaintiff’s passport details and residential address failed to pass this threshold. In the current coronavirus context, given the fact that only the second patient in New Zealand, and her family, have sustained virulent online abuse following media reportage of details of her travel history, place of residence and children’s schools, the courts might be receptive to the argument that it is, in these particular circumstances of crisis and insecurity vis-à-vis the novel virus, highly offensive for mainstream media to publish information that could lead to the identification of affected individuals.

The defence in the New Zealand tort is that publication was for a legitimate public concern. Though there is no prescribed proportionality exercise, and no alignment with European Convention rights, as in England and Wales, this defence would see New Zealand courts ask effectively the same question of the impugned publication: given the public health crisis context, is publicity given to this particular information about the affected individual of legitimate public concern, so that members of the public are better equipped to protect themselves.

Australia

In Australia, the common law of privacy has not developed quite as far. Although a State appellate court has awarded a remedy for invasion of privacy on the basis of the equitable action of breach of confidence (Giller v Procopets (Vic)), that does not mean privacy has crystallised into a straightforward, juridified right in Australia: breach of confidence still requires a pre-existing relationship of confidence to bind the defendant vis-à-vis dissemination of the relevant information. In Giller, the Court refused to recognise a tort of interference with privacy, opting instead of the equitable remedy. Media obviously do not have such a relationship with the individuals on which they might report, so that remedy would not be available to affected individuals. Some first-instance courts in Australia have awarded remedies on the basis of a general interest in individual privacy (Jane Doe v ABC (Vic) and Grosse v Purvis (Qld)); but others have refused to recognise an actionable privacy interest (Kalaba v Commonwealth).

This state of affairs originates in the High Court of Australia’s seminal judgment in ABC v Lenah Game Meats Pty Ltd, where no cause of action in interference with privacy was recognised to be available to the plaintiff, which was a company and not an individual. The Court explicitly did not, however, preclude the recognition of such an action in Australian common law, and, indeed, it confirmed that nothing in the common law  stood in the way of such an action being recognised in the future, in appropriate circumstances, and with appropriate protections for the implied constitutional freedom of political communication. Perhaps this particular situation of reportage on a global public health issue involving patients’ privacy concerns might encourage courts, if faced with the appropriate facts, to recognise a tort of interference with privacy in Australian common law, on the basis of the door left open by the High Court in Lenah.

Personal data regulation – a less likely remedy for media reportage

Remedies may also lie against intrusive media reportage under personal data regulatory schemes, but, although the information concerned would be caught by these regimes (name, medical data, place of residence), these may not be as useful to individuals as the common law, given the general media exclusions. In the United Kingdom, the Data Protection Act 2018 permits journalistic processing of personal data provided the media outlet or journalist reasonably believes publication would be in the public interest (Sch 2, Pt 5, cl 26(2)(b)). In New Zealand, the Privacy Act 1993 permits media reportage of personal information provided it concerns news, observation of news, or current affairs (s 2(1)). In Australia, the Privacy Act 1998 (Cth) permits journalistic reportage of personal information provided the media organisation is publicly committed to observing privacy standards (s 7B(4)).

Jelena Gligorijevic is a Lecturer in Law at the Australian National University. She is a PhD Candidate in Law, at Trinity College, University of Cambridge, UK. She submitted her doctoral thesis on the conflict between privacy and freedom of expression, in July 2019.


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