What happens when you extend the idea of public interest to privacy?

It is totally unsurprising the News of the World scandal in Britain has triggered the likely introduction of privacy laws in Australia.

For several years the Australian media has been anticipating this day, and is almost psyched ready for some loss of freedom in this most vexed area of media law.

Today Justice Minister Brendan O’Connor announced the “government will seek the views of the public on introducing a right to privacy in Australia”. That’s a polite way of saying it will legislate to create a statutory tort for breach of privacy, paving the way for the public to sue the media for foot-in-the-door and other intrusive forms of journalism.

The idea hasn’t come out of nowhere. It has been on the table since the Australian Law Reform Commission made this recommendation, along with 294 others, in a wide-ranging review of privacy in 2008.

Although the government concedes there are already adequate laws to prosecute phone hackers, it’s grabbing the moment while News Limited is so unpopular to push for this as well. Or as O’Connor’s media release put it:  “We know that privacy is a growing concern for everyday Australians — whether it is in our dealings with individuals, businesses, government agencies or the media.”

Former prime minister Paul Keating made the call for privacy laws following the News of the World scandal. He told Lateline last week:

“Well there’s one thing that’s clear for sure comes out of this and that is self-regulation by the media is a joke. A joke. You know, I notice tonight John Hartigan talking about the Press Council of Australia. I mean, people shouldn’t have a right to appeal about invasions of their privacy to some body funded by newspapers; they should have a right at law.

“What we need, what we seriously need, which has been now recommended by the Commonwealth Law Reform Commission, the Victorian Law Reform Commission and the New South Wales Law Reform Commission is a separate right-of-action in privacy, a separate tort.

“So in other words, you don’t have a right of appeal to some body, you have a right to action, you have a right to the law. In the end, the only regulator of this bad behaviour is the law.”

Michael Gawenda of the Centre for Advanced Journalism at the University of Melbourne says he has mixed feelings about privacy laws but is ultimately opposed to them. He concedes it is a difficult and vexed area but he believes the emergence of new media makes the job of framing and enforcing privacy laws extremely difficult.

“We live in a landscape where it is almost impossible to see how they’d be enforced,” he said. “There is a new generation for whom the notion of privacy is completely different to what it was a generation ago.”

The government has promised to release a discussion paper on the issue, which will address some of the privacy challenges posed by social and online media.

The new laws will inevitably include a public interest test, meaning reporters will need to demonstrate some public good is derived from encroaching on someone’s personal privacy. This means the public will claw back some of the rights it lost with the introduction of the uniform Defamation Act in 2006. Under the old laws the media in several states had to prove there was a public interest for defaming someone. But since 2006 the media has not had to stop and ask itself the fundamental question: “Does the public really need to know this stuff?” Truth alone is now a defence in defamation actions.

So what happens when you extend the idea of public interest to privacy?

Gawenda says the problem with a public interest test is who defines it? “It is a very slippery term.” Does it mean what the public is interested in? Who will define it and how will the legislation define it? Do we want lawyers or judges to define it?

He asks rhetorically: “Were the revelations in the WikiLeaks documents in the public interest? Lots of politicians said they weren’t.”

The new laws will also build on some heavy-duty case law in recent years. In the 2007 case of Jane Doe versus the ABC, the Victorian County Court upheld an action for breach of privacy from the victim of a s-xual assault because the ABC had identified her in several radio news bulletins. The judge felt emboldened to make the ruling because the High Court had effectively invited lower courts to do so in the 2001 case of Lenah Game Meats versus the ABC.

The state and federal law reform bodies have also joined in with recommendations that the parliaments legislate to create a tort enabling people to sue. Since then media company lawyers have been advising their clients to be very careful, especially when the victim has a “reasonable expectation of privacy”.

So if the proposed law codifies ethical and professional practice it would probably be good for all concerned. But if the government is seizing the opportunity provided by the News of the World to erode the legitimate rights of the media to report openly, then that would be a very bad thing indeed.