Commonwealth Government's Issues Paper:
"A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy"

25 November 2011

IS THERE A NEED FOR A CAUSE OF ACTION FOR SERIOUS INVASION OF PRIVACY IN AUSTRALIA?

Introduction

News Limited is opposed to the introduction of a cause of action for serious invasion of privacy.

As a member of Australia’s Right to Know, News Limited participated in consultations and made submissions to the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (NSWLRC) in relation to this issue. Detailed arguments against a new cause of action were made to the two Commissions.

This submission sets out or arguments against the introduction of a new law.

In addition to this submission, together with SBS, we have addressed the possible elements of a cause of action canvassed in the discussion paper in a separate submission. While News Limited opposes the introduction of legislation, we feel it is productive to address each of the elements discussed in the paper given that an analysis of a number of these elements highlight the problems and unworkability of such legislation.

We appreciate there may be some superficial attraction to Australian law providing more protection against invasion of privacy in a world where boundaries between private and public are shifting and we are constantly reassessing what it and what is not acceptable invasion of that privacy.

But as the NSWLRC said:

“An argument for the introduction of a statutory cause of action for invasions of privacy …… must be based on the inadequacy of the protection currently afforded privacy by statute and common law”[1]

In our view the case for a new cause of action has not been articulated. The wrongs to be corrected have not been articulated and it not correct to assert that a new law is needed to addressed “gaps” in protection.

In addition, the potential negative impacts of a new law outweigh any potential benefits.

No need for a new statutory law

The paper comments there is growing community concern about protection of privacy as a faster and cheaper internet is becoming more pervasive, the popularity of social media is increasing and Australians are increasingly connected.

Technology is both increasing the transmission of personal information to new audiences making it easier to invade privacy and it is also providing improved ways to safeguard individuals’ privacy.

Technological change is the justification given for introduction of a new cause of action.

But no argument has been offered in the paper or by the ALRC, the NSWLRC or the Victorian Law Reform Commission (VLRC) that a new law is needed to manage invasion of privacy by the media.

In our view, a clear rationale for why the new law is needed has not been identified in the reports of any of the law reform commissions or in the discussion paper.

We note in the foreword to the Issues Paper, the Hon Brendan O'Connor MP acknowledges that "serious invasions of privacy are infrequent”.

Negative consequences of a new law

And yet, the potential negative impacts of the new law are extensive.

These are discussed throughout the submission but include;

-the impact on freedom of communication and an informed community;

-complication of the legal process caused by the overlap of laws;

-inappropriate limits on individuals actions as the proposed action is too broad;

-the ability for individuals to use the law for purposes other than legitimate protection of their privacy as the proposed action is too broad;

Extreme care is required when creating a new cause of action as, in addition to attempting to close perceived gaps in the existing legal framework, consideration must be had to the wider impact such a new cause of action would have and the potential unforseen exploitation of the new law.

Arguments against a new law

The dominant arguments against a new cause of action for invasion of privacy are:

-existing protections are adequate;

-the overlap of laws would cause undue complexity;

-the new law proposed is unacceptably broad;

-Overseas developments are undesirable; and

-people’s expectations of privacy are changing;

Each are discussed below.

Existing protections are adequate

Australia already has in place extensive privacy laws which provide adequate protection, including the Commonwealth Privacy Act 1988, State and Territory privacy and personal information legislation, surveillance and listening devices legislation and numerous statutory restrictions on publication.

There are also, various actions available at common law that deal with conduct which could affect "privacy" in the broad sense, including trespass, nuisance, defamation law and breach of confidence.

In our view the current statutory and common laws are adequate to address invasion of privacy concerns. However, if they were found to be lacking in any way there is ample opportunity for the common law to develop to fill that gap or specific statutes to be amended to address a specific problem. For example if technological developments mean that current surveillance laws are not adequate to deal with problems, they can be updated.

This is preferable to introducing a blanket law just to deal with a specific problem which could be dealt with more specifically and without risk of causing negative unintended consequences.

The ALRC bases its conclusion that current law is inadequate on the fact that the law of breach of confidence will not apply to harassment as it only applies where the private information has been published.

The ALRC asserted that without introducing a statutory cause of action, the harassed claimant in Grosse v Purvis[2] would be left without a remedy. The VLRC made a finding to a similar effect.

This is incorrect. In Grosse and Purvis, a case which has been the subject of considerable criticism, it was clear that a remedy existed under section 359B of the Criminal Code 1899 (Queensland) (which is a stalking offence).

It is also worth noting, Australian courts in bothDoe v Australian Broadcasting Corporation[3] and in Giller v Procopets[4]found that the recognised cause of action for breach of confidence was sufficient in the circumstances of the two cases to provide remedy.

Comments have been made that there is a gap in current laws because they do not in all situations provide civil remedies, namely damages.

In our view, this is misguided.

For example, in a situation like Grosse and Purvis, harassment or stalking would be best dealt with by a court order preventing such action taking place in future, namely by a criminal sanction.

A remedy in damages in such circumstances would not be appropriate, and should not be available as some sort of alternative to the criminal sanction.

Unfortunately, the law reform commissions have not acknowledged that criminal remedies in this type of situation are more effective and of greater significance than civil remedies.

In other situations, damages may be appropriate, for example where a persons reputation has been damaged and this is provided for specifically in defamation actions.

A right to a civil action based on a broad “invasion of privacy” where the person may not even have to prove damages is excessive.

In our view, the law provides via statutory criminal causes of action, in addition to other civil actions, a broad range of remedies thought to be suitable for perceived breaches of privacy without the need to introduce a new, specific cause of action.

Overlap causes unnecessary complexity

The proposed cause of action overlaps with existing protections and would add unnecessary complexity to Australian privacy law.

This is contrary to the Attorney-General's Terms of Reference for the Review of the Privacy Act, which cited the desirability of minimising the regulatory burden on business.

For instance, in the ALRC's recommendations, the proposed limb of the action protecting against "interference with an individual's home or family life" overlaps with trespass and the surveillance limb is largely redundant given existing surveillance legislation.

Such a position is apparent from the difficulty in the Issues Paper that arises between the interaction between any new cause of action and other legislation in respect of privacy. The apparent resolution of this dilemma is to require the court to have regard to the existence and applicability of other privacy protective laws or the existence of other more appropriate options in determining where an action should lie. Such a provision is unworkable in practice.

Litigants will seek to distinguish the available causes of action arising from the same circumstances in order to maximize the remedies available to them. The practical effect will be the parties will be tied up in hearings attempting to determine whether the action is available having regard to the availability of other perceived causes of action. Indeed, given the extent of the overlap between the cause of action and existing laws, there will be relatively few matters in which such a debate will not occur.

The cause of action proposed is unacceptably broad

The elements of the proposed cause of action extend beyond any potential cause of action contemplated by Australian courts to date for example by the High Court in Australian Broadcasting Corporation v Lenah Game Meats[5].

The cause of action now outlined would be much more broad-ranging, and would affect property and planning disputes, marital and relationship disputes and security and surveillance practices, in addition to the disclosure of private facts.

An action for breach of privacy would presumably apply to situations such as:

-a family dispute where currently a party may take an AVO against the other party;

-a planning dispute between neighbours regarding how near to an adjoining a fence a building may be erected;

-the installation of security cameras on a property which spill onto a neighbours property (an issue which clearly should be dealt with under surveillance laws if necessary);

-the disclosure to friends of the extra-marital activities of a mutual friend;

-the posting on facebook of naked photos of a friend;

It would cut across laws in a broad range of areas, including property, health and safety, custody, surveillance, security generally, defamation and employment.

In our view, it will be likely to have considerable adverse effects in a number of areas, including:

(a)preventing people from doing things that they wish to do for laudable reasons and which are in the public or a private interest due to a fear of possible liability for interference with privacy;

(b)the cause of action being used as a weapon by individuals seeking to deflect public scrutiny of malfeasance and corruption;

(c)upsetting the balance between competing interests reached in a wide variety of other areas of the law, extending for example from defamation, as well as surveillance, public health and other areas;

(d)giving individuals an additional basis upon which, and additional forums in which, to pursue relief which they would not be entitled or which would not be awarded to them if they pursued the matters in question through appropriate laws and through specialist courts and tribunals;

(e)increasing the level and frequency of disputes, and therefore consuming court and private resources; and

(f)making people unduly cautious about disclosing information about individuals even where it is important for one or more public interest reasons to do so.

Even it is correct (which we do not concede) that the cause of action is required to close some perceived gap, unfortunately it will promote litigation rather than suitable redress or avoidance of breaches of privacy.

Insufficient recognition of freedom of speech

The law reform commissions have commented that one of the justifications for introduction of a cause of action is to bring Australia into line with other jurisdictions internationally.

Such a law cannot bring us into line, given that other jurisdictionsdo not have a similar cause of action without an accompanying protection of the right to freedom of speech.

Transplanting regimes from other jurisdictions which operate in the context of constitutional, bill of rights regimes or statutory protections for freedom of expression should be done with caution.

The privacy rights recognised in the US and the UK are countered in terms of freedom of speech by the First Amendment to the United States' Constitution and s12 of the Human Rights Act 1998 (UK) respectively. Those free speech rights influence judicial and community attitudes to interpretation of the cause of action.

The introduction of a cause of action without appropriate recognition of those rights will have an unacceptably adverse effect on the right to freedom of speech and related interests. This is clearly undesirable.Without a clear, articulated and enforceable right of freedom of expression or freedom of speech, one would expect that the Australian judicial interpretation of any cause of action for privacy would place public interest as being narrowly and prescriptively defined, to the detriment of all potential defendants.

Overseas developments are undesirable

Without wanting to draw direct comparisons with the laws in overseas jurisdictions, it should be noted that the situation which has developed in England is undesirable.

The developing claim of breach of confidence for misuse of private information is used predominately by public figures, celebrities and sports stars, largely to restrain their ex-partners or people they have affairs with from going to the media with their stories.

We query whether it is worthwhile for the Australian legislature to enact a right for a privileged few, who want to be able to act out, then suppress the details.

Further, the making of "super injunctions" is becoming commonplace in the United Kingdom to prevent publication of the identity of claimants, the details of the private information the subject of the claim as well as the very fact of the injunction, with an estimated 35 injunctions being granted as of May 2011.

However, the utility of such injunctions is questionable. A good example of this is the Ryan Giggs case, where after an injunction and anonymity order was made, the footballer was named by a Member of Parliament under parliamentary privilege, then his name was spread via Twitter.

It is clearly arguable that there is a public interest in the media reporting on the private lives of public figures, on the basis that the freedom to criticise the conduct of other members of society as being socially harmful or wrong generates public discussion and debate, and the public opinion on issues of morality develops. This is particularly so where the relevant public figure in question is in the position of being a role model for a particular segment of the community.

People's expectations of privacy are changing

The extent to which people engage in developing technology is voluntary. With the rise in popularity of social media and internet blogs, people are becoming more willing and open to sharing their private lives and personal information more broadly. This has already, and will continue to have the effect that people are actively agreeing to forgo previous notions of what is "private".

In any event, where businesses have overstepped the mark in respect of the online community's ideas of what constitutes privacy, this has resulted in public furore. An example of this is when Facebook users have expressed strong disapproval of the website's announcement of proposed privacy changes, resulting in Facebook backtracking and reinstating previous privacy settings.

Should any cause of action for serious invasion of privacy be created by statute or be left to development at common law?

The paper notes that the common law in some Australian and overseas jurisdictions is evolving to include protections against privacy.

And the NSWLRC recognises that common law protection of privacy could occur through the expansion or transformation of one or more existing actions currently protecting privacy. It recognises breach of confidence is the most likely.

But each of the law reform commissions concluded that statutory development of an action is preferable to development at common law.

News Limited does not agree with the conclusion reached by the law reform commissions.

In our view, the courts have had and continue to have ample opportunity to develop the common law to provide additional protection for protection if it thinks it is needed. The fact that the courts have not developed the law further at this stage is an indication it does not see there is a problem that needs to be addressed with additional law.

A number of arguments to support the conclusion of the law reform commissions.

Firstly, the law reform commissions emphasise what they see as the limitations inherent in incremental development of the common law.

An example given is that the action for breach of confidentiality is confined in such a way that those feeling "harassment" would be left without redress.

As discussed above, this is not correct. Current criminal law is sufficient.

Secondly, both the ALRC and the VLRC concluded that a statutory cause of action would permit a more flexible approach to defences and remedies. They commented that it would avoid the problem of their being defences and remedies under both equitable and tortious causes of action.

The ALRC concluded this, notwithstanding the fact that it recommended all of the possible remedies and elements of an equitable and tortious cause of action.