As it stands, privacy is protected and regulated mainly through the federal Privacy Act (1988).  Complaints are made through the Office of the Australian Information Commissioner.  Some 1200 complaints are received each year and a quarter of those result in a payment of monetary compensation to the complainant.  The Privacy Act protects only the misuse of personal information by government agencies and the private sector in fairly limited ways.

Broad exemptions operate within the Act to protect journalists and media from collecting and publishing personal information. Privacy commissioner Timothy Pilgrim says this exemption has had the effect of filtering out nearly all complaints about the media from the commission.

The Australian Law Reform Commission’s recommendations, if implemented, would create a broader right to privacy and set out distinct criteria that would make it possible for an individual to take an independent legal cause of action in the courts, against individual persons and media organisations. An individual would have a right to sue if they were able to affirmatively show they had reasonable expectation of privacy and the act or conduct complained of is highly offensive.

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A spokesperson from the ALRC told Crikey the move from a complaints-based administrative process to a private cause of action would provide greater scope and remedies for potential breaches of privacy in culture of rapidly increasing technological advancements. The ALRC said it was not clear why the government had waited three years after getting the reports before it made a comment on what is probably the most contentious recommendation.

The debate around creating a legal right to privacy has been at a divisive stalemate within the legal world for at least the past decade.  Our highest court has been split over the issue. Legal academics continue to disagree over long and complicated papers on what tests could apply to new privacy laws.  While the NSWLRC has also called for a statutory cause of action, the Australian Law Council says there is more than enough legislation and media regulation to protect people’s private information.

Part of the complication is that privacy is such a highly nebulous concept it is difficult to create an adequate legal definition.  Another is the “conflict of rights” issue — freedom of expression versus the right to privacy. Finding a balance, even with adequate defences, is fraught when such fundamental, internationally recognised rights clash.

The common law has also been ambivalent in recognising a tort of privacy. In the High Court decision of ABC versus Lenah Game Meats in 2001, the company pleaded invasion for privacy and sought an injunction to a story being broadcast after the ABC aired footage from a third party that broke into their abattoir to film native possums having their throats slit and canned for meat.  The company was unsuccessful because the High Court held only individuals and not corporations could have privacy rights.  However, the decision paved the way for the possibility of privacy being recognised at common law in the same way as negligence or defamation.

Since then only two plaintiffs have been successful in pursuing breaches of personal privacy in the courts.  In 2003, the Queensland District Court awarded $178,000 in damages to a shire mayor following eight years of harassment and stalking by her ex-lover, in the first recognised case in developing and applying a tort of privacy.  The second case involved a s-xual assault victim in Victoria was also awarded $230,000 in damages, in part for breach of privacy, after the ABC broadcast the victim’s name in its evening television and radio bulletins.

In the majority of privacy cases, judges have dismissed the concept of a common law right to privacy, generally on the basis of a lack of clear judicial authority and that the development of privacy law is best to the legislature.  Also, is has generally been held that privacy law is unnecessary when the actions litigated against were already covered by existing law, such as breach of confidence or trespass.

Most complaints about breach of privacy by the media are currently handled by the Australian Communications and Media Authority; some argue this is sufficient regulation. The Australian Press Council compellingly contends that the creation a statutory right to personal privacy is  problematic in a country where there is no corresponding statutory or constitutional recognition of a freedom of expression.  This is a strong argument, it is also one that can be misused to conflate freedom of expression with the freedom of journalists to procure and publish private information in ways that violate on an individual’s liberty and autonomy.

It is not possible to sue for a breach of privacy in the United Kingdom, but the recognition of privacy in UK law is far from clear cut. Several high-profile cases have extended the breach of confidence actions to publishing private, personal situations. One involved an injunction issued from the UK’s highest court, the House of Lords, to stop unauthorised photographers publishing photos of the wedding of celebrities Catherine Zeta-Jones and Michael Douglas on the basis it was “a private affair”.  Supermodel Naomi Campbell was also credited with “creating a right to privacy” after the House of Lords ruled in her favour when she sued the Mirror for publishing a photograph of her leaving a Narcotics Anonymous meeting in 2001.  Campbell’s claim succeeded on the basis of a breach of confidence — for unlawfully disclosing private information, making privacy rights a definite maybe in UK common law.

If anything, these cases show it will most likely be the rich and powerful, not the everyday victims of sleazy tabloid journalism who will have the means to seek redress for privacy breaches in the courts.

The Murdoch-owned Herald and Weekly Times said in its submission to the 2008 ALRC inquiry, “Clearly, the proposed laws will discourage journalists’ sources who use surveillance techniques to collect information in pursuit of uncovering or confirming a story of public concern. This will result in … reducing the amount of stories the media will be able to uncover and reveal to the public”.

It’s an argument that would have sounded perfectly reasonable had it not been for the current circumstances. Perhaps, that is the problem with the government raising the issue off the back of the News of the World scandal. Rights are not without limits, not all stories are worth telling and some surveillance techniques, it might be said, should be discouraged — but that doesn’t necessarily mean we need a statutory cause of action for privacy.

***

27/7/11 Correction: This story originally included a line to suggest that ABC journalists broke into Lenah Game Meats to obtain footage of native possums having their throats slit and canned for meat for The 7.30 Report. This is not correct, and the story has been amended to reflect that.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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