AustLit

PRIVACY

The interplay between the Australian media and privacy laws has long been a struggle between free expression and the desire of individuals for confidentiality.

Complaints about media intrusion date back to the early 19th century. According to Historical Records of Australia, as early as 1827 NSW Chief Justice Francis Forbes rejected Governor Ralph Darling’s proposal for legislation licensing the press, stating that ‘the press of this Colony is licentious may be readily admitted; but that does not prove the necessity of altering the laws’.

Three years later, the Sydney Gazette and New South Wales Advertiser published an extract from London’s New Monthly Magazine noting the prying nature of the British press, suggesting they would hound a ‘lady of fashion’ relentlessly. In 1847, New South Wales became the first Australian state to add ‘public benefit’ to its defence of truth for libel—essentially a privacy element in defamation law.

The notion of a ‘right to privacy’ did not emerge until the late 19th century, after the US publication in 1890 by Samuel D. Warren and Louis D. Brandeis of the landmark Harvard Law Review article with that title. In the 1937 case of Victoria Park Racing and Recreation Grounds Co. Ltd v Taylor, the High Court decided by a three to two majority that a commercial radio station that broadcast its horse race call from a platform it built on property overlooking the racetrack did not unlawfully interfere with the racing club’s use of its property. It ruled that the station had not breached any ‘right to privacy’. But the comments of the dissenting Justice Rich were prescient: ‘Indeed the prospects of television make our present decision a very important one.’

Over the ensuing 75 years, support for an actionable right to privacy increased as the concept gained currency internationally. Article 12 of the Universal Declaration of Human Rights, proclaimed in Paris in 1948, enshrined privacy as a human right, and was reinforced by the proclamation of the International Covenant on Civil and Political Rights in 1966, protecting privacy in Article 17.

In 1979, the Australian Law Reform Commission (ALRC) released its first major report on privacy, Unfair Publication: Defamation and Privacy, recommending that people be allowed to sue for damages or an injunction over the publication of ‘sensitive private facts’. Following a second report in 1983, Privacy, the Privacy Act 1988 was introduced to establish information privacy principles and the appointment of a Privacy Commissioner. It initially applied only to the protection of personal information in the possession of Australian government departments and agencies, but was extended to larger private-sector organisations in 2000. Media organisations were exempted from the provisions as long as they ascribed to privacy standards published by their representative bodies, including the Australian Press Council and the various broadcasting industry bodies whose policies were registered with the Australian Communications and Media Authority.

In 2001, the High Court revisited its 1937 Victoria Park Racing privacy decision in the case of Australian Broadcasting Corporation v Lenah Game Meats. It rejected the argument of a Tasmanian abattoir to a right to privacy after animal liberationists trespassed to film the slaughter of possums and the ABC planned to broadcast the footage. However, the court refused to rule out the potential for a right to privacy under a different fact scenario. Intermediate court decisions in Queensland in 2003 and Victoria in 2007 awarded plaintiffs damages for invasion of privacy, but these decisions were not appealed.

Meanwhile, in 2008 the ALRC recommended a statutory cause of action for breach of privacy where an individual had a ‘reasonable expectation of privacy’, with a cap for non-economic loss of $150,000 in its For Your Information report. In 2011, the federal government proposed to implement a variation on this when it released an Issues Paper floating a Commonwealth cause of action for a serious invasion of privacy. It made other amendments to the Privacy Act in 2012 which took effect in 2014, but with no proposed tort for invasion of privacy.

The government’s Convergence Review report of 2012 flagged the withdrawal of privacy law exemptions from media outlets that refused to join its proposed news standards regulatory system. In June 2013, the federal Attorney-General directed the ALRC to conduct an inquiry into the protection of privacy in the digital era. The inquiry was to address both prevention and remedies for serious invasions of privacy with a deadline of June 2014.

The Gillard Labor government also introduced legislation to establish a ‘Public Interest Media Advocate’ with the power to strip media outlets of their Privacy Act exemptions, but it was not supported in the Senate.

Australia has not experienced the same level of intrusion into the private lives of celebrity figures that has occurred in the midst of frenzied tabloid newspaper competition in the United Kingdom in recent years, prompting that country’s Leveson Inquiry in 2011. Actress Nicole Kidman won a temporary restraining order against two magazine photographers in 2005. She planned to follow this up with an apprehended violence order, but her lawyers reached a confidential agreement with one of the photographers. Paparazzo Jamie Fawcett later lost a defamation action against Fairfax Media over an article that labelled him ‘Sydney’s most inventive and most disliked freelance photographer’. Australian celebrities such as actress Judy Davis, footballer Andrew Ettingshausen and businessman Rene Rivkin chose the developed tort of defamation for their litigation over the undeveloped tort of privacy.

New technologies prompted privacy concerns in 2013. The federal Attorney-General sought state and territory input on the regulation of drones following the Privacy Commissioner’s concerns that their operation by individuals was not covered by the Privacy Act. Google unveiled its wearable ‘glass’ technology, prompting privacy commissioners from 10 nations including Australia to query its potential for surreptitious recording of private activities.

REFs: ALRC, For Your Information (2008); Department of Prime Minister and Cabinet, Issues Paper: A Statutory Cause of Action for Serious Invasion of Privacy (2011).

MARK PEARSON