Freedom of expression in Australia is arguably freer than it has ever been, both legally and practically. Oppressive censorship of art and literature is largely a dim memory from the distant past (leaving aside infrequent moral panics like the Henson naked kiddie pic affair). The High Court invented a constitutionally-protected freedom of political communication in the early 1990s and subsequently entrenched it. And a few years ago the Commonwealth and States agreed and implemented a new uniform national defamation law which reduced the capacity for lawyers to make a fortune from representing wealthy litigants keen on winning a new weekender on the coast by claiming the media had impugned their precious reputation, which the law conveniently if rebuttably deemed to be pristine.
On the production side of the equation, publishing material to the world that might invade a person’s privacy or damage their reputation is now effectively costless, available to every Tom, Dick or Kim, and unpredictably liable to “go viral” through being picked up by Twitter or Facebook or even a large populist blog. Moreover, just about every callow teen carries a camera-equipped mobile phone to record events they think might boost their peer status. Social mores and conventions simply haven’t yet developed to provide a guide on how to behave in this brave new cyber-glasshouse world. Even presumably sophisticated legal academics make egregious errors of judgment by Twittering bitchy analogies about equine fornication, while meat-headed middle-aged sporting managers heedlessly seize actual fornication opportunities with publicity-seeking nubile young teens.
Richard Ackland has been banging on for some time about the danger that media freedoms and freedom of expression generally may be seriously at risk from expansion in the scope of privacy laws, equitable doctrines like breach of confidence and even the re-assertion of more restrictive defamation laws in response to the challenge posed by the cyber-glasshouse world:
It looks like a big, fat, fruity pudding for barristers. It’s the NSW Bar Association’s submission to the government’s review of the Defamation Act, and what a corker it is. It calls for a march backwards to a more sublime time when the defamation business provided plenty of good grazing for lawyers.
Remove the cap on damages, allow corporations and dead people to sue, abolish truth alone as a defence, let juries decide everything in lengthier, more complex trials. Let’s have the law as it was before the uniform Defamation Act came into being in 2006 and slowed libel cases to a trickle. That’s the bar’s make-work mission, although there are some internal disagreements around the issue of privacy.
Personally I think it’s unlikely that the barristers will succeed in convincing politicians to revert to the halcyon defamation litigation days of yore. Far more likely that Australian privacy laws will be expanded to provide more effective remedies for really egregious breaches of personal privacy. Moreover, that isn’t necessarily a bad thing, as even Ackland begrudgingly concedes. Freedom of speech is certainly a critical democratic value, but other values and interests like privacy and personal reputation also have a legitimate claim on the legal system. It’s just that the law hasn’t to date managed to devise an effective set of rules to balance these competing rights and interests when they come into conflict (as they often do).
However the Australian Law Reform Commission proposed major reforms to Australian privacy laws in 2006 which, if adopted, might well succeed in striking an appropriate balance between all these competing values. It’s an indictment in itself of the shallow, trivial nature of Australian media that this issue hasn’t to my knowledge come up for serious public discussion despite the evident threat that Ackland identifies. The ALRC recommends (inter alia) that the Privacy Commissioner should have power to apply to the Federal Court for imposition of significant civil monetary penalties for very serious or repeated breaches of privacy. More importantly, it also recommends that private individuals should be given a tightly constrained statutory cause of action to sue for serious infringements of privacy:
Recommendation 74–1 Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:
(a) there has been an interference with an individual’s home or family life;
(b) an individual has been subjected to unauthorised surveillance;
(c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or
(d) sensitive facts relating to an individual’s private life have been disclosed.
Recommendation 74–2 Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:
(a) there is a reasonable expectation of privacy; and
(b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.
In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining 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).
Recommendation 74–3 Federal legislation should provide that an action for a serious invasion of privacy:
(a) may only be brought by natural persons;
(b) is actionable without proof of damage; and
(c) is restricted to intentional or reckless acts on the part of the respondent.
Recommendation 74–4 The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the:
(a) act or conduct was incidental to the exercise of a lawful right of defence of person or property;
(b) act or conduct was required or authorised by or under law; or
(c) publication of the information was, under the law of defamation, privileged.
Recommendation 74–5 To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following:
(a) damages, including aggravated damages, but not exemplary damages;
(b) an account of profits;
(c) an injunction;
(d) an order requiring the respondent to apologise to the claimant;
(e) a correction order;
(f) an order for the delivery up and destruction of material; and
(g) a declaration.
Recommendation 74–6 Federal legislation should provide that any action at common law for invasion of a person’s privacy should be abolished on enactment of these provisions.
I think this proposal goes close to getting the balance pretty right, although there’s an evident danger that it will simply result in a back-door re-imposition of the old “truth and public benefit” defence in defamation law which made it such a lawyer’s banquet for so many years. You can have delightfully subtle, prolonged and remunerative debates about whether there is a sufficient public interest in knowing the truth about a particular person which outweighs their right to reputation (or privacy). As Ackland observes: “There is a public interest and stuff that is interesting to the public”. I think at the very least any law along the lines the ALRC recommends should expressly give greater weighting to freedom of speech by stating that “matters of public concern and the public interest” should be interpreted broadly in any case of doubt.
Test the proposed regime against recent controversial situations. I reckon Ricky Nixon’s tacky behaviour with the St Kilda Schoolgirl should not give rise to any remedy for Nixon, while the young military cadet whose private bonking session with a fellow cadet was broadcast on Skype almost certainly would. She had “a reasonable expectation of privacy” and “the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities”. NSW Labor Minister David Campbell is a trickier situation. He was “outed” by Channel 7 as a closet frequenter of gay bars and forced to resign. Those are certainly “sensitive facts relating to an individual’s private life”, and on one view you could argue that he had “a reasonable expectation of privacy”. On the other hand you could argue that there was a public interest in disclosure because of the risk of blackmail of a person holding an important public office which inevitably flowed from the closeted nature of the conduct, the fact that he was married and presumably hiding it from his family, and the serious electoral effects of exposure.
What do you think? I should explain that under current Australian law there is no common law tort of breach of privacy, and the Privacy Act 1988 (Cth) is primarily a complaint-based system where the Privacy Commissioner mostly resolves complaints by way of mediation and non-binding determinations requiring retractions, apologies and other remedial action, although a determination by the Commissioner may include a requirement for payment of compensation and may later be enforced in the Federal Court or Federal Magistrates Court.
The effect of the ALRC recommendation would be to institute for the first time in Australia a direct and immediate right to litigate through the courts for serious breaches of privacy. As things currently stand, breaches of personal privacy are only directly actionable if they happen to involve the commission of some existing recognised civil cause of action e.g. infringement of intellectual property rights if someone’s photos or diaries are acquired and republished without their permission (as the St Kilda Schoolgirl is alleged to have done with photos of Nick Riewoldt); or if the acquisition of privacy-infringing material involves an actionable trespass. You can mount a respectable argument that the current patchwork system provides sufficient protection of privacy and that any legislated general right to litigate for privacy infringement runs too much risk of recreating the old high stakes defamation litigation lottery under a new guise.
The range of potentially invasive technologies are increasing exponentially. I was reading an article by Justice Eady not long ago in which he discusses tensions between freedom and privacy and the impact of the media.
‘As you know, our modern notion of freedom of the press is generally attributed to the refusal in 1694 (only six years after the Bill of Rights) to renew the Licensing Act. The 19th century constitutional lawyer and historian A.V. Dicey concluded that thereby Parliament had “established the freedom of the press without any knowledge of the importance of what they were doing”.’
– freedom of the press by default?