Version of 21 July 2011
The need for effective privacy protections has been well-understood for 40 years – since Sir Zelman Cowen’s ‘The Private Man’ in 1969.
The courts have failed to develop a tort of privacy, and parliaments have provided only very limited and very weak legislation. Privacy Commissioners have not been provided with powers to solve problems, and in any case recent federal Privacy Commissioners do not have a strong record of working to protect people’s privacy.
All three Law Reform Commissions have recognised that the time has come to enable people to take legal action against unreasonable behaviour by companies, governments and other individuals. (ALRC 2008, NSWLRC 2009, VLRC 2010). They have framed the new right so as to avoid the risk of a chilling effect on media freedom, by including a ‘public interest defence’ and a relatively high threshold of ‘serious intrusion’ that is offensive to a reasonable person. See, in particular, the ALRC’s Recommendation No. 74.
Despite the LRCs’ careful work, the media have mounted opposition campaigns against the proposal. There have been statements by proprietors and executives, and hysterical articles in the press – in some cases by otherwise steady and reponsible reporters and commentators. As has been well-documented, politicians have long lived in fear of the media, particularly the Murdoch press. The proposal has accordingly sat on the back burner for a considerable time.
The revelations about serious misbehaviour by UK News Corporation reporters, and quite possibly by managers and executives, has revived interest in the right to action. On 21 July 2011, the Australian Government announced that it will release a Discussion Paper on the matter (Media Release, mirrored here).
The APF’s Position
Privacy protection in Australia is seriously inadequate. On the other hand, the privacy interest must always be carefully balanced against other important interests. In particular, privacy protections must not obstruct the legitimate role of the media in holding to account governments, corporations and individuals in positions of power.
The APF strongly supports the introduction of a right of action that has the following characteristics:
- it must available to individuals, but not to legal persons such as companies
- it must enable a court to grant injunctions, award damages, and impose penalties exemplary or punitive damages [clarified 24 Oct 2013]
- it must require the court to balance the privacy interests of the litigant against other important interests, including and especially ‘the public interest’
- it must provide a clear framework and criteria for evaluating a defence that an invasion of privacy is justified in the public interest
The APF published its Policy Statement on ‘Privacy and the Media’ in March 2009. This includes what it believes to be an appropriate interpretation of the public interest. It will be submitting this to the Government for consideration.
In addition, the APF strongly supports the removal of the media exemption from the existing provisions of the Privacy Act, as per the ALRC’s carefully drafted Recommendation No. 42.
1. The privacy right of action is not specifically about the media; but it must apply to the media as well as every other individual and organisation
2. Media commentators originally reacted hysterically against the proposal, and have grossly misrepresented what it is, and what impact it would have
3. Media freedoms are crucial to a free society, and crucial to privacy interests. Privacy advocates are intent on ensuring that reasonable behaviour by journalists and publishers is supported, and is not prevented or constrained by the new right
4. The APF remains open to discussions with the media and other interested organisations about its Policy Statement on ‘Privacy and the Media’, with a view to the development of a common position on how the public interest should be defined