By Paul Gregoire and Ugur Nedim
When a gossip columnist for a prominent Australian masthead was made aware that a leading local star with global reach was gay, he gave her a heads up and requested comment, prior to exposing her secret, and when she then pipped him to the post, he felt entitled to publicly criticise her over it.
This scenario and others like it, such as the printing of photos of people who are in compromising positions or situations, such as leaving a rehabilitation centre or being naked at a beach or on a boat, as well as anyone else who has a reasonable expectation of privacy, have been raised as reasons for proposed new laws which would bring our nation in line with other Commonwealth countries by introducing a statutory tort for serious invasion of privacy, which would provide a right to sue in such situations.
This proposal is one of 116 recommendations made by the February-released Privacy Act Review report, which was launched by then attorney general Christian Porter in December 2019, with current AG Mark Dreyfus having indicated his intention to legislate in its regard later this year.
But whilst much of the public would agree that a person’s sexuality or whether they’ve had issues with substance use shouldn’t be dredged up as part of the morning news, these are extreme cases being cited as support for a measure that may serve to silence the media in more detrimental ways.
And that’s the point Australia’s Right to Know (ARTK) coalition and others have repeatedly raised as reason not to create the tort, outlining that rather than this right to sue being necessitated, there’s already an expansive framework of privacy protections adequately safeguarding this issue.
Model being considered
A tort is a wrongful act or omission under civil law that leads to legal liability, which means that a wronged individual can take court action to seek remedy, and this usually consists of compensation in the form damages, which is a monetary payment for injury or loss incurred.
Recommendation 27.1 of the Privacy Act Review report calls for the implementation of a statutory tort for serious invasions of privacy, in accordance with the example set out in the 2014 Australian Law Reform Commission Serious Invasions of Privacy in the Digital Era report.
The ALRC’s statutory tort for serious invasion of privacy provides for two types of invasions: intrusion into seclusion and misuse of private information. And to prove such transgressions, it has to be shown that privacy in the circumstances in question was to be reasonably expected.
Further, the privacy invasion must be “serious” in nature and have intentionally or recklessly been committed. And in terms of a reckless act, it would be committed by an individual without a pre-existing relationship with those trespassed against, which entailed a known or foreseen risk.
Including negligence as a cause of privacy harm was considered by the AG department, however it was found that such a cause could result in organisations being overly cautious in releasing information, while duty of care negligence is likely to be captured under the proposed model.
In terms of defences against the tort, the report lists those of lawful authority, that the act was part of defending persons or property, in cases of publication of public documents, fair reporting of public proceedings, as well as in situations involving consent, necessity or absolute privilege.
While suggested remedies include damages, including in exceptional cases, punitive damages, surrender of profits made, injunctions, removal of materials in question, along with correction and apology orders, as well as declarations.
A chilling effect
ARTK is a coalition of media outlets and organisations, which include the ABC, SBS, News Corp, Nine and The Guardian, as well as many other major players in the Australian media landscape. And it’s long argued against the statutory tort for serious invasion of privacy.
In its submission to the Privacy Act Review, ARTK outlines that the tort would “have a detrimental impact on freedom of expression, freedom of media and will undermine news reporting”, as would the removal of the journalist exemption contained in section 7B(4) of the Privacy Act 1988 (Cth).
Whilst there had been debate around the removal of the journalism exemption, the review itself seeks to limit the function of it, so it only covers media organisations subjected to privacy standards overseen by a recognised oversight body.
The ARTK further stresses that the privacy framework already in place is more than adequate without such a tort, with protections that include both federal and state laws around the use of personal information, as well as those governing surveillance, listening devices and phone tapping.
Then there’s the plethora of red tape restricting reporting on issues involving “children, family law matters, adoptions, coronial inquiries, sexual offences, domestic violence, jurors, communication with prisoners and other detained persons, and security matters including national security”.
The coalition also raised the ability of the courts to impose nonpublication and suppression orders on certain matters, which they readily do, whilst there are also common law provisions that restrict privacy breaches that include trespass, breach of confidence, defamation and malicious falsehood.
Protecting the rich
Australia is renowned for its overbearing defamation laws, which have come under much criticism of late for having allowed the extremely wealthy, including politicians, take legal action in order to silence critics, whilst leaving the less affluent who’ve been defamed almost helpless.
And a statutory tort for serious invasion of privacy is likely to similarly permit the ultrarich to obtain its benefits over that of the rest of society, and unlike defamation law, the tort won’t make it incumbent upon the complainant to show that the matter exposed was in fact truthful in nature.
Civil causes of action for serious invasions of privacy already operate in the United Kingdom, Canada, the United States and New Zealand. And whilst some have statutory measures, all of these foreign jurisdictions have developed common law torts for privacy invasions, whereas Australia has not.
“Media industry submitters were opposed to all options for a statutory tort on the basis that it would have a detrimental or ‘chilling’ effect on freedom of expression and journalism in Australia,” the AG department’s recently released privacy law report confirms.
Indeed, Guardian Australia’s submission set out that based on the experience of how such torts have been utilised overseas, taking such action would be out of reach for “the vast majority of Australians”, with only the wealthy being able to commence such proceedings in the courts.
“There is a danger that this tort is used to further chill journalism in relation to the wealthy and powerful in society, to the detriment of accountability and transparency in our democracy,” Guardian Australia makes clear.
“At its heart, this tort is used to limit the publication of true public interest information.”
