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BlackBay Insights

  • Anastasia Dimitriou

Invasion of Privacy: Towards a New Statutory Tort in Australia?

On 13 June 2023, during Question Time in the House of Representatives, the Member for Warringah, independent MP Zali Steggall, asked Attorney General Mark Dreyfus the following question:

Media publication of leaked private material produced for a police investigation undermines trust and confidence in the criminal justice system for victims. Both the Privacy Act review and the Australian Law Reform Commission have each recommended strengthening the privacy standards that media organisations should consider prior to publication.
What steps is the Government taking to review the exception to the Privacy Act for journalism, as journalists have an inadequate self-regulated code of ethics and Australia does not have a statutory tort for the breach of privacy?”

The context for Ms Steggall’s question was leaked private material belonging to Brittany Higgins produced under subpoena in R v Lehrmann in the criminal proceedings against Bruce Lehrmann for the alleged rape of Ms Higgins. The material, which includes private telephone messages between Ms Higgins and various parties, continues to be published in the media, despite being subject to the so-called Harman Undertaking. BlackBay Lawyers has previously written about the obligations of third party recipients (including journalists) of documents subject to the Harman Undertaking.


The Attorney-General responded to Ms Steggall’s question as follows:


Thank you, Mr Speaker. And I do thank the Member for Warringah for raising some very important questions, particularly her question concerning the Privacy Act review. The Review made a range of recommendations for law reform, as did the Australian Law Reform Commission. Both of those have been subject to a further consultation process, and the Government is now considering all of that…”

The Privacy Act Review commenced in 2020 following recommendations by the Australian Competition and Consumer Commission (ACCC) in its 2019 Digital Platforms Inquiry – Final Report (ACCC DPI Report). The Privacy Act Review Report was publicly released by the Attorney-General on 16 February 2023.


Currently, under s. 7B (4) of The Privacy Act 1988 (Cth), acts or practices engaged in by ‘media organisations’ in the course of journalism are exempt from the operation of the Act, provided the organisation is publicly committed to observe standards that deal with privacy and those standards have been published in writing. The purpose of the journalism exemption is to balance ‘the public interest in providing adequate safeguards for the handling of personal information and the public interest in allowing a free flow of information to the public through the media.’[1] The Privacy Act Review Report recommends not only scaling back the so-called ‘journalism exemption’, but also the introduction of new statutory tort for serious invasions of privacy. This would provide victims of privacy breaches by the media a direct means of suing and being compensated for those breaches. The introduction of the tort was also a recommendation of the Australian Law Reform Commission in 2014 (ALRC Report 123), the ACCC DPI Report, and the AHRC’s Human Rights and Technology Final Report.


Predictably, the proposed changes are being fiercely resisted by media organisations. Australia’s Right to Know (ARTK) coalition (a body representing the Guardian, News Corp, Nine, AAP, Free TV Australia, the Media Entertainment and Arts Alliance and public broadcasters the ABC and SBS) says the proposals, if implemented, would have a “chilling effect” on public interest journalism and harm press freedom. The term “chilling effect” has its origins in First Amendment cases in the United States and is often used by Australian media organisations to criticise defamation laws which they perceive as potentially stifling or suppressing legitimate speech.


However the ARTK’s declaration of the dawn of a new Ice Age appears to ignore the fact that the tort proposed in ALRC Report 123 stipulates that for a plaintiff to have a cause of action, the court must be satisfied that the public interest in privacy outweighs any countervailing public interest. The ALRC recommends the following list of countervailing public interest matters which a court may consider (along with any other relevant public interest matter):


  1. freedom of expression, including political communication and artistic expression;

  2. freedom of the media, particularly to responsibly investigate and report matters of public concern and importance;

  3. the proper administration of government;

  4. open justice;

  5. public health and safety;

  6. national security; and

  7. the prevention and detection of crime and fraud.

The threshold of seriousness recommended by the ALRC is likewise intended to reduce the risk that the tort will constrain media freedom. The design of the cause of action was informed by nine guiding principles, one of which was that “privacy should be balanced with other rights and interests, such as freedom of expression. The ALRC considers that privacy and free speech are both better protected by finding a reasonable balance between them”. In a chapter of the ALRC Report headed “Balancing Privacy with Other Interests” the ALRC says:


Those who oppose the introduction of a new privacy tort commonly appeal to the fundamental right to freedom of expression, and argue that the tort will impede free speech and a free media. The ALRC is particularly concerned that the tort recommended in this Report does not have that effect. The public interest in freedom of speech and freedom of the press should be expressly recognised in an Act providing for a new privacy tort…” and
The public interest balancing exercise recommended in this chapter is designed to ensure that privacy interests give way to free speech, when this is in the public interest.”

Supporters of the introduction of the new tort include leading academics in torts and media law (eg Professors Barbara McDonald and David Rolph from the University of Sydney Law School), privacy and consumer advocates, the Law Council of Australia, and the Office of the Australian Information Commissioner (OAIC), with their preferred model being that recommended in ALRC Report 123.


As Ms Higgins’ case demonstrates, victims of serious privacy breaches by the media are often left without legal recourse in circumstances where neither the Defamation Act 2005 nor the Online Safety Act 2021 apply (ie the published material is not defamatory, and nor is it cyber-bullying, cyber-abuse or image-based abuse). In Ms Higgins’ case, an action in breach of confidence is also unavailable because the media organisations in question did not owe her an obligation of confidence.


If the leaker of the private material can be identified, and that person was bound by the Harman Undertaking in respect of that material, they may be subject to prosecution for contempt of court. As noted in a previous BlackBay Lawyers article, journalists publishing the material, although not bound by the Harman Undertaking themselves, also risk a finding of contempt if they knowingly publish material to which the Harman Undertaking applies. BlackBay Lawyers is not aware of an instance of such a finding being made by an Australian court to date.


Conclusion

Freedom of expression, including freedom of the media, is a fundamental principle in the Australian legal system. However, it is not absolute, and the proposed statutory tort of invasion of privacy would seem to strike an appropriate balance between the public interest in freedom of expression and the public interest in protection of privacy.


Until such reforms are enacted, people whose privacy is invaded by the media will be forced to fall back on a complicated and inadequate set of rights found in the laws of defamation, breach of confidence, court procedures and limited statutory protections. It is be hoped that the reforms come quickly, given how long they have been in the making.


[1] Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth) 81.

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