By Megan Richardson

There’s been a lot of talk in recent weeks about the need for a statutory privacy tort. This comes in the wake of the Murdoch press’s phone hacking scandal. Even before then there were the reports of the challenges that social media sites such as Facebook and Twitter and their millions of users offer to the privacy of users, their ‘friends’ and others discussed. The apparent trends towards untrammelled publicity suggest that not only sporting figures and other celebrities may find themselves constantly on show to their voracious audience, despite their efforts to prevent this happening. Now we are seeing a multitude of ordinary and sometimes quite vulnerable people also suffering inconvenience and distress and even deeper harms from the prying eyes and gossipy comments of others. Indeed given that ordinary people and celebrities are often not that different it is easy for these two groups to overlap – I would say Lara Bingle is a good example here. So perhaps it is not surprising that the public pressure for more effective legal privacy protection might be increasing.

To demonstrate its sincerity in tackling the possible problem of privacy the government has recently published an Issues Paper asking the Australian people for advice on the need for a new statutory tort. In fact, this represents just one more stage in a constant public consultation program on the benefits (or not) of a statutory cause of action in privacy. In 2008 the Australian Law Reform Commission made recommendations for a statutory privacy tort, after a substantial review including a nation-wide program of consultation. Following that report there were further reports from the New South Wales Law Reform Commission (in which I was involved as a member of an expert advisory panel) and the Victorian Law Reform Commission, both also coming at the end of a program of public consultation. And both also recommended statutory causes of action for invasions of privacy (although in each case these were slightly differently framed). So it seems that there is considerable public support for a statutory privacy tort. But would this bring all the benefits proclaimed?

My question here is not about the possible benefits of a new statutory action. It is true that our existing law already provides a significant degree of protection to privacy, through the actions such as breach of confidence, defamation, passing off, harassment, and intentional infliction of emotional distress. Breach of confidence especially functions as a privacy doctrine, being based on an idea of trust and confidence that information that is not a matter of ‘public knowledge’ will be treated according to the wishes of the party it concerns. (It would have been the obvious action for the Australian Defence Force Academy cadet who recently discovered that images of her engaging in sex had been secretly streamed to her partner’s friends.) But a statutory action for invasion of privacy would provide greater transparency than an action which is not framed around privacy – in the same way that the statutory tort of misleading or deceptive conduct is more transparent than the traditional common law misrepresentation and passing off actions. It could also usefully provide more avenues for enforcement than the courts, utilising the federal and state information and privacy commissions. And it would hopefully be more easily updated than the slow-moving incrementally-adapting common law to accommodate new situations and circumstances.

And the benefits would not only have to be on the side of privacy claimants. A statutory public interest defence, as recommended for instance by the Victorian Law Reform Commission, would provides a vehicle for interests in privacy and publicity to be balanced on a case by case basis – providing a clear basis for protecting free speech while not conceding automatic and absolute priority when it comes to speech which involves or results from an invasion of other’s privacy. There are many cases where a balance between privacy and free speech may seem relatively straightforward. The leaked shower photo of Lara Bingle is a good example. Here the free speech argument for publication is weak to non-existent compared to Bingle’s claim for privacy. Or, to take another real-life example (from the 2006 case of Australian Broadcasting Corporation v O’Neill which went to the High Court as a defamation case), the public interest in revelation on the ABC of a convicted child killer’s confession to an undercover journalist (and former police officer) that he had killed other children seems very strong even in the face of his claim for protection of privacy. For the revelation not only raises questions of public safety but also of the operation of the justice system.

Of course not every case would be so straightforward. For instance, there is the controversial English case of the blogger ‘NightJack’ who became famous for his insider’s account on the life of a serving police officer and then found that The Times proposed to publish his true identity having discovered this via a journalist, using ‘mainly’ internet sources (the other sources were less clear). The blogger sought an injunction on the basis that the information as to his identity was ‘private and confidential’, that he gone to lengths to secure his identity, and that those who knew he was NightJack also knew this was private and confidential – adding, moreover, that there was no clear public interest that justified publication in The Times. The judge refused an injunction on the grounds that, first, blogging is a ‘public activity’ and, second, the public interest supported public exposure of the blogger’s violation of the police code of practice. It may be wondered whether blogging should be deemed to be such a ‘public activity’. But I am sympathetic to the argument that on balance the public interest supported the publication. In any event, the blogger (Richard Horton) seemed to accept the finding. He wrote a follow-up article of his own in The Times where he talked about his motivations and at the same time expressed loyalty to the police force (which had for its part had limited its penalty to a warning). Needless to say, he showed less sympathy for idea of the inherently public nature of blogging. Why would he?

But the question whether a statutory privacy tort would bring all the benefits that have been claimed by its supporters still has to be asked. The question comes down to how the tort would be framed as a matter of statutory language. One question currently being considered is whether a privacy claimant should have to show that the violation of privacy would be ‘highly offensive to a reasonable person of ordinary sensibilities’, as recommended by the Australian Law Reform Commission. The Victorian Law Reform Commission made a similar recommendation. But it was not the recommendation of the New South Wales Law Reform Commission. And there are several (including myself) who have argued that a high offensiveness standard would be an onerous and unfair standard for a privacy claimant. It would effectively carve out a sphere of absolute protection for speech and other conduct which invades a person’s privacy according to that person’s own lights, not on the basis of any public interest in knowing the information but simply on the basis that a ‘reasonable person of ordinary sensibilities’ would not be highly offended. What justifies the ordinary/reasonable person’s involvement in filtering individual privacy claims in this way?

Certainly, this standard is not historically part of our law. For instance, our action for breach of confidence is traditionally premised on allowing individuals to decide how seriously concerned they are about the public discussion of their affairs – that was noted by Mason J in the 1980 defence papers case Commonwealth v John Fairfax & Sons (pointing out that the government should be held to a higher standard). Although Gleeson CJ hinted that a high offensiveness standard might be a useful adjunct to the breach of confidence action when used to protect privacy in the 2001 case of Australian Broadcasting Corporation v Lenah Game Meats, operating as a ‘useful practical test’ in scenarios where information was not ‘necessarily private’, there was no suggestion there that it should be erected into a threshold that might deny protection to otherwise private information. Nor does it come from the United Kingdom’s statutory provision for privacy in the Human Rights Act 1998 (implementing the Article 8 right to private life in the European Convention on Human Rights). And the UK courts for their part have rather preferred as the starting point for assessing a privacy claim a ‘reasonable expectation of privacy’, treating this as a matter to be judged from the perspective of the claimant, not the audience which is seen to have its own vested interest in publication (given its role as consumer). In fact, the highly offensive standard comes from the US privacy torts which are notoriously difficult to satisfy. In practice, not only does this threshold carve out a protected zone of privacy-intrusive free speech. It takes the majority’s will as the proper standard of what a privacy expectation should be. While this might make sense in a jurisdiction which has erected freedom of speech to an overriding constitutional imperative, in jurisdictions (such as ours) where freedom of speech is traditionally treated in a more balanced and fact-specific way it would be a curious development in our law. Why should we import this US standard into our law, especially when the American attitude to privacy is historically so different from our own?

Perhaps the language of ‘highly offensive’ to an ordinary/reasonable person could be read differently in an Australian context than an American one. I would hope so. In the US, courts refused to uphold a privacy claim brought by a chronically private former child protégé, now a recluse, who was exposed in an article in The New Yorker using information obtained by an undercover journalist masquerading as a friend of the claimant and which was ‘merciless in its dissection of intimate details of its subject’s personal life’ (in the 1940 case of Sidis v F-R Publishing Corporation). They also gave no credence to the privacy claim of a Hasidic Jew of the Klausenberg sect whose religion prohibited the use of ‘graven images’ after he was secretly photographed by a street photographer hiding behind a scaffolding in Times Square New York with the photograph later exhibited and sold as an artwork (in the 2007 case of Nussenzweig v diCorcia). And they had no sympathy for the privacy claim of a Berkeley student Cynthia Moreno who having posted a critical comment about life in her former home town on her ‘Cynthia’ MySpace page and taken them down six days later found her former headmaster had arranged its publication in the local newspaper with her full name attached (in the 2009 case of Moreno v Hanford Sentinel, Inc). A subsequent claim for intentional infliction of emotional distress also failed notwithstanding that after the forced publicity she suffered threats and her family was forced to close its business and leave town.

The American media lawyer David Anderson once wrote that the fact that Americans (in general) do not value privacy highly and rather want to know everything about their neighbours goes some way to explain what he called ‘the failure of American privacy law’ (in Markesinis (ed), Protecting Privacy, 1999). If there is an Australian culture of privacy I would say it is more sympathetic to individual claims of privacy as a counterweight to free speech, in keeping with nineteenth century Millian ideas of individual liberty and utilitarian balances which are traditionally embedded in our common law. Perhaps we are changing in our expectations of privacy, but for my part the American approach is not a good model for where we might want to go with privacy protection. If that is where a statutory cause of action would take us, I would rather stick with the incrementally-developing common law.

Megan Richardson is a professor at the Melbourne Law School

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