A girl dies in an accident at her home; a TV crew hovers overhead in a helicopter and airs footage of her body lying face-down under a sheet. Newspaper photos show the grieving mother kneeling beside her daughter’s body. Should such actions by the media be legal or illegal? Should more be done to legally protect the right to privacy of families like this?

This is the case of 13-year-old Molly Lord, who died in a quad bike accident last year. Her family are suing media outlets in the courts over intrusions into their grief and privacy.

The accident occurred on a family property near Wollongong and drew reporters from the Seven Network, Nine affiliate WIN and the Illawarra Mercury.

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The family claims that reporters were told to leave the property and refused, took pictures without the family’s knowledge and that a Seven helicopter flew low over the property to film Molly’s body. Footage was broadcast on the Mercury website and re-aired on WIN. A picture in the Mercury showed Molly’s body.

The family is now suing the media outlets in the NSW Supreme Court for emotional suffering caused by the intrusion. It’s been reported the family has complained to the Australian Communications and Media Authority but this is not correct: the ACMA has not received any complaints.

In the courts, the most promising basis for a legal action is breach of confidence — an action successfully applied to “privacy-like” cases in the past and which is standard practice in UK media litigation.

However, applying breach of confidence to privacy is like squeezing a round peg into a square hole. It relies on a legal fiction, the idea that the parties had an implied mutual agreement about confidential information, which is certainly not the case when reporters simply show up and start taking pictures.

One action they can’t call upon is breach of privacy, because the action doesn’t exist — at least not yet. The courts don’t have a privacy law they can rely on; it’s not written into the law. The question of a privacy law has been with us for some time and two weeks ago, among the tranche of media recommendations made by Stephen Conroy, was an announcement that the question of a privacy tort is be referred to the Australian Law Reform Commission. And the ALRC has every right to reply “see our last report”.

In 2008, after two years of considering privacy issues, the ALRC returned a 2700 page report that included a recommendation for a privacy tort. The law reform commissions of NSW and Victoria have held separate inquiries and agreed. The government has also been “considering” over 50 submissions to an issues paper on the question. The one thing the question of privacy does not need is more consideration.

Unfortunately, the tort has been criticised as an attack on the media. It is perhaps telling that a proposed law that applies to all of society has been identified as a law about the media.

“The fact that the family … is going to struggle to find the legal legs to stand on suggests that the legal system is missing a law.”

The truth is, regardless of how the media may be affected, the absence of a privacy tort offends legal logic.

The legal logic of a privacy action was pointed out by the High Court in ABC v Lenah Game Meats in 2001, in which Chief Justice Gleeson proposed that an invasion of privacy might be shown where conduct would “be highly offensive to a reasonable person of ordinary sensibilities”. This has been enthusiastically endorsed by many privacy commentators as a good test for invasion of privacy.

Unfortunately the facts of the Lenah case didn’t make it suitable to launch a new law. Lower courts have also grappled with the question of a privacy tort, but the only court able to establish a new tort is the High Court.

Should it make it to the High Court, the facts of Molly’s case could provide the test case that the common law needs. It is undoubtedly about privacy and nothing else. The fact that the family, which has the right to feel victimised, is going to struggle to find the legal legs to stand on suggests that the legal system is missing a law.

While the High Court may be required to launch a privacy tort — given the stalling tactics of government — it is not necessarily the best way to create a new tort. It may take many cases (and years) for the subtleties and the detail of the law to become clear — however, a lot of progress could be made given the right case. A statute, on the other hand, allows a willing government to take care of the details in one blow.

Unusual as it may sound, media companies have an interest in campaigning for legislation. A statute would provide certainty and is more likely to address media concerns than judge-developed law. Of particular interest to media players should be the inclusion of a public interest defence to permit privacy invasions that can be justified on public interest grounds.

But given the extreme reaction from some quarters of the media to recent reform proposals, don’t hold your breath. Despite the free press rhetoric — should that be histrionics? — the media have never been above the law. They have an opportunity now to help craft the law to protect their own freedoms and the public interest.

This ability to invade privacy on public interest grounds already exists in the relevant news codes. The question is how to define “public interest” and how to apply the exception in real-life situations. For instance, the public may have a legitimate interest in the dangers of quad bikes, but it doesn’t necessarily have an interest in seeing a family in distress.

ACMA’s Privacy guidelines for broadcasters provides case studies to increase the “general awareness” of broadcasters under the broadcasting codes. Study three provides an example of a boat accident and the public interest in the face of private grief. ACMA acknowledges that public interest exists in “boating safety and reporting on a boating accident”, but concludes that the story “as a whole did not justify the broadcast of extended footage showing a distress survivor who clearly objected to being filmed”.

Hopefully, these guidelines and similar guidance by the APC gains the proper attention of news reporters, making their jobs more certain and reducing harm to the victims of privacy invasion.

*Mark Briedis is a policy researcher from the Communications Law Centre at the University of Technology, Sydney

CLARIFICATION: An earlier version of this article stated that a complaint had reportedly been made to the Australian Communications and Media Authority about this incident. The ACMA has, in fact, not received any complaints about this matter. The article has been amended online.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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