During the last three years, the federal, NSW and Victorian Law Reform Commissions have all concluded that a statutory tort is necessary to deal with aspects of privacy that are currently unprotected in Australia.

Previous attempts at a reasoned discussion of the proposals have been thwarted by firestorms unleashed by media outlets. On July 21, the federal government took the opportunity provided by widespread revulsion at phone-hacking by journalists in the UK to announce a discussion paper to build on the 2008 Report of the Australian Law Reform Commission.

The Australian media reacts with vitriol when they judge, or just imagine, that their freedom to gather and publish information is under threat. The News Limited stable often leads the charge, and this week has filled pages with articles on the government’s proposal and loosely related topics. There are myths in the debate that need to be corrected …

The tort is targeted at the media

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A primary misrepresentation is that the tort is targeted at the media. Yet, in discussing the scope of the right of action, the ALRC, at multiple points, makes clear that the scope is very wide. For example:

“…the types of acts or conduct that could constitute an invasion of privacy … include where there has been a serious interference with an individual’s home or family life; an individual has been subjected to unauthorised surveillance; an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; and sensitive facts relating to an individual’s private life have been disclosed.”

Interviews published in The Australian itself have disclosed that “the recommendation to establish a legal right to privacy [is] not just about the media” and “[the ALRC] took pains to emphasis [sic] the media were not a particular target for the recommended course of action for a serious invasion of privacy”.

There is no evidence of a problem

As everyone in the debate agrees, the role of the media is rather special. But the second misrepresentation that has been perpetrated is that there is no evidence of abuses by the media that need to be addressed. This has been raised in various forms, including this editorial in The Oz:

“…neither Mr O’Connor nor any other minister has been able to cite a case in which the media breached individuals’ privacy … [O’Connor is] floating hypothetical examples of how Australian newspapers could invade individuals’ privacy, because he has no real examples.”

Yet Media Watch had no trouble finding prominent people to use as examples, nominating Lara Bingle, David Campbell, Candice Falzon, Jess Origliasso, Nick Riewoldt and Sonny Bill Williams. And that list omitted several others that come quickly to mind, such as Andrew Ettinghausen, Pauline Hansen and Nicole Kidman, plus myriad tabloid radio and television programs that have ignored “the public interest” and pandered to “what the public might be able to be interested in”.

Media commentator Richard Ackland was in no doubt, as long ago as February, that the Campbell breach by Channel Seven was alone sufficient to tip the balance.

The tort is unsafe at any speed

A third cluster of unreasonable accusations depict the proposal as being unsafe in various ways. A particularly egregious misrepresentation is “as the ALRC has argued previously, the concept of a general tort of privacy is vague and nebulous”. The full quotation from the ALRC is:

“In its later report, Privacy (ALRC 22), the ALRC declined to recommend the creation of a general tort of invasion of privacy. In the ALRC’s view at that time [1983], ‘such a tort would be too vague and nebulous’.”

Michael Stutchbury has tele-ported a statement across a 28-year gap to provide spurious support to his contention. Further, as pointed out in a blog post by barrister Peter Clarke, Stutchbury justified his argument by distorting comments by a Chief Justice.

The ALRC’s proposal was first depicted as “unreasonable”:

“It would be better if the media worked with government to help propose a reasonable law, with robust mechanisms to allow for the full and proper protection of the public interest.”

Then the proposal was lambasted as being “an extremist ‘tort of invasion of privacy'” and part of “an extremist rights agenda”.

All of this appears to be intended to justify a claim that the tort would seriously harm freedom of the press. But in fact, the ALRC took great care to identify the competing interests, to place great weight on freedom of the press, to place the onus of proof very firmly on the claimant, and to structure multiple, high hurdles.

The ALRC settled for “characterisation of the cause of action as a “serious invasion of privacy” that is “highly offensive to a reasonable person of ordinary sensibilities”. How high the bar is set is indicated by the example that “disclosure [by a medical practitioner] of the claimant’s HIV status will not be ‘highly offensive'”. The design of the ALRC’s tort ensures that only the most extreme or repeated actions will result in a case even getting of the ground. How can even the term “unreasonable” be justified, let alone the highly pejorative tag “extremist”?

There is no public interest defence

But perhaps the prize for the most blatant misrepresentation should go to The Australian‘s Legal Affairs Editor Chris Merritt:

“The inclusion of a public interest defence will allow the media to publish material that would otherwise be a breach of privacy so long as it concerns a matter that is in the public interest.”

So the implication is clearly conveyed that the ALRC’s proposal does not include a “public interest defence”. That impression is reinforced by the statement: “The only defences under the ALRC scheme would have enabled the media to avoid liability if it published private material while relying on a legal right such as privilege.”

Even the minuscule number of people familiar with this small segment within the ALRC’s lengthy report would have easily fallen for this one.

It’s technically true that the list of ‘defences to the statutory cause of action’ does not include “the public interest”. But that expression is a term of art in this context. The ALRC explained that:

“Rather than attempt to protect other rights through a defence, the ALRC agrees it would be better in principle and in practice to add an additional element to the cause of action for a serious invasion of privacy. This would ensure that privacy interests are not privileged over other rights and interests” (74.147).

That explanation is difficult to overlook, because it is repeated in the discussion of the defences: “the ALRC considers that the defence of disclosure in the public interest or fair comment on a matter of public interest should form part of the elements of the cause of action” (74.170).

In short, the claimant can’t establish that they have a case unless they convince the court that “the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression)”.

The “defence” that Merritt pretended doesn’t exist is there alright — up front, rather than down the back end.

Ultimately, the privacy right of action has been a long time coming. The need for a tort has been discussed in learned reports and articles since the 1960s. The ALRC proposed a tort of “unfair publication” in 1979. In 1987, the (then Liberal-dominated) Senate passed an amendment to the Privacy Bill to provide for a (limited) action for breach of privacy; it was rejected by the (then Labor-dominated) House of Representatives.

Moreover, International Covenant on Civil and Political Rights (ICCPR) — which Australia signed in 1972 and ratified in 1980 — arguably obligates us to provide legislative protections for all forms of privacy, not just data privacy, and a tort of this kind is one straightforward way to achieve some level of compliance. I wish I, as an individual, could deliver on my obligations over 30 years late.

The media as a whole have got to get over their desperate paranoia. Your worst enemies aren’t actually out to get you. We all believe in the freedom of the press as much as you do.

And The Australian, of all of the News Ltd outlets in Australia, needs to stop compromising broadsheet standards and get back to the quality journalism that newspaper devotees expect. (We’re still here, still reading).

*Roger Clarke is a 40-year veteran of the IT industry, and Principal of Xamax Consultancy. For the last 20 years his consultancy focus has been on strategic and policy aspects of advanced technologies. He is a Visiting Professor in the Cyberspace Law & Policy Centre at the University of NSW, and a Visiting Professor in the Research School of Computer Science at the Australian National University. He has also been active in consumer and privacy advocacy since the 1970s, and is currently chair of the Australian Privacy Foundation.