New Matilda is in court today, accused of, among other things, breaching the Privacy Act in publishing Professor Barry Spurr’s private emails, in which he used a variety of shocking and graphic racial and sexual slurs.

It’s likely to be a landmark case. Spurr’s lawyer, Arthur Moses SC, is relying on never-tested privacy legislation, as well as the common law tort of privacy (never previously used successfully in an Australian higher court), to argue New Matilda and its editor, Chris Graham, breached his client’s privacy in publishing personal emails Spurr sent to friends. Moses wants New Matilda to agree to not publish further information based on the emails, to have the emails returned to Spurr, and to have what’s currently on New Matilda taken down (an earlier attempt to force New Matilda to reveal its source has been dropped).

In its defence, New Matilda has open to it both procedural and philosophical avenues. It can argue that as an organisation turning over less than $3 million a year, it isn’t subject to the Privacy Act. And on the tort, it could argue public interest, as Spurr was an adviser on the government’s national curriculum review. The Privacy Act contains an exemption for media organisations subject to a self-regulatory body, but New Matilda is not currently a member of the Press Council.

It’s not the first time someone has used similar laws to halt publication of private correspondence. Barrister Michael Rivette says he’s handled similar cases in the past, some in superior courts. But none of his cases went to trial, and upon conclusion, they contained injunctions about revealing the information, ensuring his client’s privacy. “If I do my job properly you don’t hear about it,” Rivette said.

That isn’t an option open to Spurr. Regardless of what the Federal Court rules, the emails he sent are public knowledge now. But in Rivette’s opinion, if Spurr’s lawyer succeeds in his arguments, the suspended academic could be in line for substantial damages, given the professional and societal reputational loss he’s suffered — Spurr has been suspended temporarily from the University of Sydney.

So what are Spurr’s odds? Chairman of the Australian Privacy Foundation Dr Roger Clarke says, somewhat diplomatically, that it’s not a case he would have chosen on which to rest his group’s advocacy of the need for stronger privacy law. “We run a fine line all the time,” he said. “Society doesn’t work unless information gets out there. But there should be a balance. I would have thought any media organisation could establish a fairly strong public interest, given the roles that [Spurr] has played.”

Clarke is sceptical about whether a tort of privacy can be successfully established in Australia.”I’ve been in this field for 42-and-a-half years. In the years before I got involved, there was lots of talk about courts developing a tort. If it hasn’t happened yet, it probably isn’t going to.”

Several lower-court Australian judges and magistrates have, in their rulings, left open the possibility of such a tort existing, even though they didn’t rely on such a tort to come to their judgments. But for a precedent to be set, it has to come from a higher court, meaning today’s case beginning in the Sydney Federal Court could have significant implications for privacy law in Australia.

There is another avenue through which plaintiffs have successfully halted breaches of their privacy. Australian courts have established a tort relating to breach of confidence. “Many plaintiffs both here and in the UK have had more success with an action for breach of confidence in similar circumstances than an invasion of privacy,” said media law expert Professor Mark Pearson of Griffith University. He adds that the public interest grounds on this tort are far less clearly defined, though courts have allowed media organisations to rely on public interest arguments in the past to get around this tort.

The Spurr case has the potential to be quite a complicated one, Rivette says. While cautioning that he hasn’t seen the causes of action lodged by Spurr’s legal team, he expects it could go for several weeks. “It raises a lot of the issues privacy lawyers have been waiting for,” he said. But the public interest argument at stake does make the case somewhat specialised. “The issues would be different if Professor Spurr hadn’t been an adviser on the curriculum. Now he holds a position that can affect the public, and public education. Once he has that role, the issue is … does the public have a right to know his opinions?”

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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