Keeping Secrets in Times of Weak Law

December 12, 2011

By Tiffany Wong, Oscar O’Bryan and Jake Goldenfein

Keeping anything secret seems like a challenge in today’s radically altered media landscape. Digitisation has abolished the cost of reproduction and networked environments expose information to actors with the capacity to leak, steal or vandalise for whatever purpose motivating them. Law hardly seems to have a role in a space where technological know-how trumps not only the regulation of secrets but also the digital architectures that protect them. But does that mean that law should retreat from regulating information, or rather, is it a time for redoubled analysis of law’s relationship to information and perhaps an open mind when looking at options for reform. Rather than harsher penalties and more vigorous enforcement, do we need more transformative approaches for dealing with the reality of our age of communicative abundance?

This year’s CMCL conference, ‘Keeping Secrets in Times of Weak Law’ answers the call for a critique of law’s role in keeping secrets and the institutions that determine when secrets should remain so.

Jake Goldenfein presented on the different forms of WikiLeaks and how its latest iteration of publishing uncensored and unredacted documents without institutional (mainstream media) oversight may be the only mode of transgression that can fulfil its ideological mission. Dan Hunter, Julian Thomas and Alana Maurushat constituted the Cybersecurity Panel, discussing the relationship between states, secrets and law. The session was chaired by David Lindsey. Philip Williams, David Brennan and Susan McMaster made up the Trade and Commercial Secrecy Panel, chaired by Beth Webster, discussing the economic arguments in the trade off between incentives to produce and incentives to enjoy information. And the Privacy Panel, chaired by Jason Bosland, included Megan Richardson, Michael Rivette, Michael Gawenda and the Honourable Michael Kirby, who discussed Lenah Game Meats – 10 years on, and the possibility of a statutory cause of action for privacy in Australia.

Cybersecurity

Dan Hunter, director of the Institute for Information Law and Policy at New York Law School, gave the Cybersecurity keynote, asking some pertinent questions about secrecy and security in the age of the Internet. In particular, why WikiLeaks was such a lightening rod for criticism and whether ‘control’ is the correct paradigm to inform the policies behind regulating secrecy.

The debate over WikiLeaks set the context for Hunter’s presentation. In asking why WikiLeaks, especially its release of unredacted cables was so derided by the institutions related to the rule of law (journalists, lawyers etc) Hunter critiqued those institutions for being unable to see the reality of today’s communications infrastructure and practices. Instead, Hunter claimed, those institutions rely on an ethic of control that propelled the ratcheting up of copyright laws since the Internet became publicly available 20 years ago, as well as informed the news media’s derision of WikiLeaks publishing without their oversight.

Hunter suggested that WikiLeaks may be a precursor for a change in policy regarding government secrecy and disclosure and asked what modern day information policies and practices should look like given the Internet and technologies like WikiLeaks. Regarding copyright, Hunter claimed control was not what creators sought and regarding secrets, Hunter alluded to substantial evidence suggesting administrators over-protect information in ways that are profoundly undemocratic. Now that we live with the idea of radical transparency as something we cannot really do anything about, Hunter claims we have to craft a policy that gives up on our misguided concerns about control despite the new dangers that may provoke.

Respondent, Julian Thomas, director of The Swinburne Institute for Social Research, discussed the extent to which the Internet has decentralised, diffused or democratised secrecy– and where WikiLeaks fits into this new equilibrium. Thomas claimed that the Internet has made states both less and more able to control information, where networks of freedom and networks of control lay alongside each other. WikiLeaks operates in this new networked society, claims Thomas, according to the model described by William Dutton as the 5th estate emerging from the network of networks. While sharing some features of the traditional press, the 4th estate, Thomas claimed this 5th estate is more than simply a supplemental ‘new’ media but operates in a space, where institutional and amateur expression are side by side, as are networks of freedom and networks of control exist within what Manuel Castells describes as the space of flows (not a space of places) where people find knowledge outside of institutional sources.

Alana Maurashat, director of UNSWS’s Cyberlaw and Policy Centre, discussed the regulation of hacking worldwide, noting her consultancy to the Canadian government to assist in crafting a reasonable policy in the field of ethical hacking. She saw WikiLeaks’ legacy as going beyond subsequent movements like Anonymous and Occupy, but rather depicted WikiLeaks as the leader, or image, of a whole system of e-government and e-revolutions, often coordinated by groups that have been considerably empowered by today’s technological conditions.

Trade and Commercial Secrecy

Beth Webster opened the panel by contextualising the importance of trade secrecy to Australian innovators, referring to the Australian Bureau of Statistics’ most recent innovation survey. This survey highlighted that 40 per cent of Australian businesses were innovation-active during the 12-month reference period and the most popular method of intellectual property (‘IP’) protection by these businesses was a secrecy or confidentiality agreement.

Keynote, Philip Williams (Chairman of Frontier Economics) offered an economist’s perspective on trade secrecy by posing the key economic problem arising from the protection of trade secrets: the trade-off between two incentives — the optimal incentives to produce information and the optimal incentives to enjoy information.  Economics has been able to articulate this problem, but has struggled to offer guidance for its resolution.

To illustrate this problem, Williams presented a simple economic model: a person spends a year of pain (‘Period 1’) to enjoy a year of gain (‘Period 2’).  The person may justify the pain by producing an asset, such as information, at the end of Period 1.  Enjoyment of that information in Period 2 constitutes the gain.  The person will only bear the pain in Period 1 if they believe that they will likely enjoy the information in Period 2.  Thus the person will likely seek legal or extra-legal protection of the information from appropriation.

Williams noted, however, that the trade secrecy context raised three complications to this model.  First, the creation of an asset does not draw a clear distinction between the two periods of activity — investment and enjoyment — since the asset will likely grow in value during Period 1.  Secondly, the asset may generate benefits for its creator through trade, whether or not the creation process has completed.  Thirdly, if the asset is information (a classic public good) difficulties arise with respect to trade.  In particular, a purchaser must know the information to determine its value — a problem also known as Arrow’s fundamental paradox of information.

Williams applied this model to the facts of Maggbury v Hafele (2001) 210 CLR 181 (‘Maggbury’), a High Court case in which the law dealt with the trade-off between the incentives to produce and enjoy an asset. Williams noted the economic inefficiency of restraining the use of information after that information had entered the public domain.  He suggested that restitutionary damages would have been a more efficient remedy by allowing Maggbury to recover the benefit of its investment and by allowing the use of publicly available information.  The key challenge in calculating the quantum, however, would be to determine the duration of Hafele’s head start, which Hafele gained by first access to the information.

 

The first commentator, David Brennan, engaged in a fuller discussion of remedies for breach of confidence. He highlighted the remedial uncertainties arising from the equitable jurisdiction of breach of confidence — remedies were at the court’s discretion, and equity provided weak guidance on the assessment of quantum.

In noting these problems with equitable remedies, Brennan argued injunctive relief would serve little purpose, given the defendant’s destruction of confidentiality; an account of profits could involve accounting problems since the significant intermingling of the defendant’s resources with the information; and equitable compensation, calculated on a counterfactual basis, might be dismissed by courts as too imprecise a measure of damages.

Brennan concluded by making suggestions for law reform.  To strengthen legal protection of confidential information and to deter the wrongful disclosure of such information, he submitted that an all-proceeds remedy would be preferable to injunctive relief where there was a breach of confidence which was: (a) in bad faith; (b) the wrongdoer benefited from the breach in an ascertainable and proximate manner; (c) the secrecy of the information has been destroyed by the breach; and (d) there was no market-based objective measure of harm.  Depending on the nature of the party’s breach and benefit, the appropriate remedy should be a constructive trust, and/or an account of profits without allowance for the wrongdoer’s contributions.

The second commentator, Susan McMaster (Senior Legal Counsel with CSIRO), provided the practical perspective of IP creators, including those who received and commercialised confidential information.  Drawing from her experience with CSIRO, McMaster acknowledged both the importance of trade secrecy in the private sector and the effectiveness of sharing knowledge to achieve impact from research results.

Secrecy, McMaster claimed, is crucial to the patent application process since patent registration hinges on the first-to-file system and the development of patentable subject matter through research and experimentation takes a long time. Further, secrecy is required for the commercialisation of public scientific research as investors are incentivised by the exclusive rights created by patent registration.

McMaster raised three key issues concerning the management of confidentiality agreements.  First, it may be unclear whether certain information is confidential.  Secondly, non-disclosure agreements must be drafted and used to enforce confidentiality, rather than to constitute a mere formality before commercial engagement.  Thirdly, a research organisation and its employees must refrain from receiving confidential information from third parties or entering into third-party confidentiality agreements if doing so would place the organisation at a commercial disadvantage.

 

Privacy

 

The final panel of the day, chaired by the CMCL’s Jason Bosland, considered the past, present and future of privacy protection under Australian law. The four speakers brought a wealth of academic, professional, industry and personal experience to panel, making for a discussion that was informative, candid and enjoyable.

The first speaker, Professor Megan Richardson framed the panel discussion around the future direction of privacy law in Australia – does Australia need a statutory cause of action for invasion of privacy, or should the common law protecting privacy interests (breach of confidence, defamation) be left to develop on its own? She noted the ‘careful silence’ of the federal government on the issue, only recently broken by the publication in September 2011 of an issues paper recommending the introduction of a statutory cause of action – a reaction, perhaps, to the resurgence of interest in the ever-expanding News of the World phone-hacking scandal.

Richardson dealt at length with the judicial reasoning in ABC v Lenah Game Meats as to whether the common law alone can protect (individual) privacy interests sufficiently, referring to Gleeson CJ’s discussion and approval of Hellewell v Chief Constable of Derbyshire as an example of the successful utilisation of the doctrine of breach of confidence to protect privacy. On the other hand however, Richardson noted the imperfections of the common law process, requiring plaintiffs to endure the ‘agonising’ process of adversarial litigation to have their interests recognised. She cited the Campbell, Mosley and Giller cases as pertinent examples of this. Richardson suggested that a statutory cause of action could make a positive difference if it were well-framed.

The second speaker was Michael Rivette, barrister at Chancery Chambers, who along with having successfully argued the privacy issues in the Giller v Procopets appeal, also maintains numerous professional and commercial interests in the media and communications sector. Rivette spoke of the continuing influence of the ABC v Lenah Game Meats case upon the development of the law of privacy, both in Australia and overseas. He suggested that the Victorian authority of Giller actually afforded greater privacy protection through breach of confidence than exists under the common law in both the UK and New Zealand. While he acknowledged the potential benefit of a statutory cause of action, Rivette highlighted the drawn-out nature of the law reform process, and said that in the mean time, ‘we have to do what we can with what we have’.

The third speaker was Michael Gawenda, whose perspective on the issues was coloured by his extensive experience as a career journalist and author. Gawenda noted that ‘journalists are in the business of invading people’s privacy’ on the basis of public interest, however he was clear that this end did not always justify the means (this can be contrasted with recent remarks by former News of the World journalist Paul McMullen). In particular he was critical of the idea that the apparent consent of a journalist’s subject to an invasion of privacy might legitimise or validate that invasion. In concluding, Gawenda was sceptical about the ability of the legal system to deal comprehensively with privacy issues, suggesting that perhaps the regulation (formal and informal) and culture of the media industries needed to change as well.

The final speaker was the Honourable Michael Kirby AC CMG. Kirby suggested that a consideration of privacy law should begin with the question: ‘Why do we want privacy?’ – framing the answer in terms of the ability to have control over our personal lives, arguing that personal privacy is important to our ‘fullness’ and ‘flourishing’ as human beings. In this sense, Kirby was of the European perspective that personal privacy is a human right which should be protected by the law. After highlighting the imperfections of the various options canvassed in the recent issues paper – do nothing, expand the role of the Press Council, rely upon the courts to develop the common law, et cetera – he came to the conclusion that the best way forward for privacy protection in Australia is the creation of a statutory cause of action for invasion of privacy.

The session highlighted the numerous stake-holders in the ongoing development of privacy law – the media, the legal profession, celebrities, ‘normal’ people – each with their own perspectives, concerns, and objectives. The task for the Australian law is to consider and balance all of these things in continuing to move towards a more coherent law of privacy.

Tiffany Wong is an LLB/BMus candidate at the University of Melbourne.

Oscar O’Bryan is holds an LLB from the Melbourne Law School.

Jake Goldenfein is a PhD candidate at the Melbourne Law School.

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When Should Privacy Be Legally Protected?

November 4, 2011

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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Phone hacking and privacy torts

July 29, 2011

By Megan Richardson

Who before last week would have predicted there would be serious talk of a statutory privacy tort in Australia with politicians coming out openly in support of it?  But then who would have predicted a phone hacking scandal engulfing the Murdoch press?

The Australian’s senior legal writer Chris Merritt last weekend dismissed the connection saying we have criminal law to deal with phone hacking plus defamation and other laws to protect individuals, and questioning the need for a privacy tort – especially one as draconian in its treatment of the Australian media as that recommended by the Australian Law Reform Commission. What this discussion sidesteps, as much of the discussion I have read to date in the press, is that we already have common law protection of privacy fashioned through case law, which does or should constrain the media.

A problem, I think, is that our main source of common law protection goes by the antiquated name of ‘breach of confidence’. This gives the false impression of a confider and confidant. In reality the compass is far broader – and the doctrine is really one of misuse of confidential information, including information of a private character. In the defence papers case Commonwealth v John Fairfax Mason J referred to breach of confidence as a doctrine restraining ‘the publication of confidential information improperly or surreptitiously obtained’, citing Swinfen Eady LJ in Lord Ashburton v Pape (1913) 2 Ch 469. More recently, in the possum abattoir case Australian Broadcasting Corporation v Lenah Game Meats, Gleeson CJ quoted Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 as saying:

If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.

Gleeson CJ agreed with that proposition, adding that to adapt it to the Australian context account should also be taken of the freedom of political communication which the High Court has held implicit in the democratic principles of the Australian Constitution. This suggests that the defence is particularly stringent where that implied freedom applies.

Lenah itself was a surreptitious filming case. Animal rights activists secretly entered the game meat abattoir’s property to film its possum slaughter processes then handed the film (through an intermediary) to the ABC who proposed to show on its 7.30 Report. Lenah sought an interlocutory injunction to stop this but did not claim breach of confidence, conceding rather that the information as to its animal slaughter methods was not confidential. Instead it argued the High Court should recognise a new tort of privacy to cover their case. Gleeson CJ said that breach of confidence would have been adequate to cover the case if ‘the activities filmed were private’. Even if so, the Chief Justice’s references to the public interest defence and constitutional freedom of communication suggests the ABC might have had a good defence. As Kirby J pointed out in his judgment, this was a government licensed abattoir and the public is entitled to know that the government is concerned to ensure that animals at the abattoir are being treated humanely (so far as an abattoir designed to kill animals can do so). The Australian government’s recent action over live meats exports shows it accepts this responsibility, and the ABC’s role in uncovering the problems there is worth noting and preserving.

We only need to imagine a slightly different fact situation to see Lenah as a strong authority on breach of confidence’s protection of privacy. Although some judges in the High Court questioned whether a corporation concerned about its public reputation was the best privacy claimant (Gummow and Hayne JJ especially), it was clear that the situation would have been different if the claimant had been an individual filmed or photographed while engaged in a private activity. For instance, Gleeson CJ said, ‘a film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence’ – as would ‘information relating to health, personal relationships, or finances’. If the information was surreptitiously or otherwise improperly obtained, there is a good argument that its publication could be restrained or a remedy granted after the fact on the basis of breach of confidence, unless a public interest could be shown to justify the publication.

These are not just hypothetical scenarios that could never arise in Australia. In fact, the prospect of an improperly obtained video recording of a man in his underpants being aired on Australian television was very real in Donnelly v Amalgamated Television Services, where an interlocutory injunction was obtained (although, as often occurs in cases where other grounds are available, breach of confidence as such was not relied on). Lara Bingle’s objection to publication of the infamous shower picture in Woman’s Day is one example and in my view she had a potential claim that might have succeeded if she had chosen to pursue her action. Certainly, there are English cases where confidentiality claims against the media have succeeded involving weaker arguments of privacy and stronger arguments of free speech than were apparent in the Bingle scenario.

That many of those English cases have arisen in the wake of the Human Rights Act 1998 makes their authority in the Australian context more debatable. The Act brings into English law the European Convention on Human Rights, including the right to privacy in Article 8 along with the right to free speech in Article 10, and gives English courts the responsibility to develop its law in accordance with those rights. Perhaps it may be argued that the absence of an equivalent Bill of Rights at the Australian level means that privacy is not, or need not be, so highly valued here. But can this be said of private phone hacking? I would think many Australians would consider this a breach of their privacy.

And it would likely be a breach of confidence as well. Well before the Human Rights Act, the English case of Francome v Mirror Group Newspapers Ltd (1984) 2 ALL ER 408 concerned an illegal ‘bug’ placed on the jockey John Francome’s private telephone line. The tapes had been offered for sale to the Daily Mirror whose reporters approached Francome to confirm their authenticity. Francome and his wife promptly brought an action in breach of confidence seeking an interlocutory injunction to stop its publication of the transcripts, or extracts. The defendants denied liability and argued, alternatively, that publication was justified in the public interest as exposing Francome’s breaches of racing rules. Thus, they said, the balance of convenience lay in their favour, so the injunction should not be granted. However, the Court of Appeal held that the unlawful telephone tap was improper obtaining, the newspaper which had notice of the wrongdoing would also be liable as a third party for breach of confidence if it went ahead with its publication, and the public interest did not justify this since the tapes could have been given to the police or jockey club to deal with through official channels. Surely this case shows that in Australia as well as the United Kingdom unlawful telephone tapping by the media would be a prima facie breach of confidence, and that given the unlawfulness of the conduct the burden on the media to show the public interest supports its action is very high – although a court might allow an argument that there is good ground to suspect misconduct and the police could not be left to handle the investigation.

But to revert to my earlier point, the significance of breach of confidence in cases such as Francome is not widely known. In answer, then, to the question of whether there would be any advantage in a new statutory tort of privacy, I suggest transparency is one. If even The Australian’s senior legal reporter does not refer to breach of confidence what is the rest of Australia’s population to make of their legal rights in the (hopefully unlikely) scenario they find their telephones tapped for media reporting on some current story?

That said, there may be better ways to acknowledge the importance of freedom of speech and the media than in the Australian Law Reform Commission’s proposed statutory tort (where it is a matter to be ‘taken into account’ in a court’s determination of invasion of privacy). I was part of an expert group of the New South Wales Law Reform Commission whose proposed statutory cause of action for invasion of privacy tries to give more explicit account to freedom of speech and the media. The Victorian Law Reform Commission in its recent proposal for a cause of action for misuse of private information has gone further still, providing a full public interest defence. To me that seems the best approach to date. As Michael Kirby was quoted in an article in last weekend’s Australian, privacy may be a human right but so equally is freedom of speech and the media. Rather than giving either automatic precedence both should be acknowledged in any privacy cause of action and if need be they should be ‘reconciled’ in cases.

So, in the end, the judge’s central role in deciding privacy cases seems inescapable. In other words, we rely on the media to report freely but in cases where media seems too intrusive of individual privacy we should trust judges to exercise appropriate oversight.

Megan Richardson is a professor at the Melbourne Law School

An edited version of this piece has featured at theconversation.edu.au

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WikiLeaks is a force for good?

June 30, 2011

I was recently invited to attend the Intelligence Squared debate asking whether ‘WikiLeaks was a force for good?’ and contribute a small article about the debate for the organiser’s newsletter (the St James Ethics Centre). The article was to be a legal companion to the article contemplating the ethical aspects of WikiLeaks by Dr Simon Longstaff, Executive Director of the St James Ethics Centre and Chair of the Intelligence Squared Australia debates. At the debate, this polemical issue provoked a tempestuous dispute by extremely gifted speakers including: Dr Suelette Dreyfus (author of ‘Underground’), Kristinn Hrafnsson (current spokesman for WikiLeaks), and Professor Stuart Rees (Emeritus Professor at Sydney University and Director of Sydney Peace Foundation) for the positive; and Gareth Evans (former Foreign Minister), Tom Switzer (political writer, editor, adviser and lecturer), and Dr Michael Fullilove (Director of the Global Issues Program at the Lowy Institute) for the negative. Interestingly, the poll results from before and after the debate suggest that while those believing WikiLeaks is a force for good remained undeterred, those undecided before the debate were markedly influenced against the proposition by the end. The precise results, as well as the audio of the debate are available from the IQ2 website.  – Jake Goldenfein

 

WikiLeaks is a Force for Good

By Dr Simon Longstaff

Speaking at the 25th Asia Pacific Roundtable in Kuala Lumpur in June 2011 Rowan Callick (The Australian) quoted Australia’s Ambassador to the United States, Kim Beazley who stated “[WikiLeaks is] like American foreign policy being neutron bombed” – the implication being that while the infrastructure of the US State Department survives, the people within the edifice have been badly damaged. Beazley’s analogy is, at the very least, striking. It is also at the more extreme end of the rhetorical scale employed by WikiLeaks’ critics. The core of Kim Beazley’s argument, however, is shared by many members of the diplomatic community. Their chief complaint is that WikiLeaks has undermined a fundamental precursor for the conduct of diplomacy – the maintenance of confidentiality of communications. The argument goes that, without a guarantee of confidentiality, the otherwise essential exchange of information will be curtailed for fear of exposure. Given that effective diplomacy can prevent or resolve conflicts capable of destroying the lives of innocent people, it is further posited that WikiLeaks is a significant source of harm – and not just a minor inconvenience.

It should be noted that this argument does not rely on the claim that WikiLeaks’ release of cables caused serious harm to those named in the published cables. Appearing before Congress, US Secretary of Defense. Robert Gates, testified that no damage had been done to active operations and that no American life had been put at risk by the activities of WikiLeaks. The fate of those who provided information to US officials, however, may not have been so benign – especially if operating under oppressive regimes in countries where even a modest degree of candour can have dire consequences for the individuals concerned.

At face value the criticism mounted by Beazley and those of like mind would seem to have merit. After all, who would deny that effective diplomacy is an important public good. It is less clear, however, that WikiLeaks acted in a manner to undermine the preconditions for diplomacy. For example, although diplomats require some matters to be kept secret, it does not follow that all matters they claim require secrecy should be accorded this same condition. The scope of the Official Secrets Act in Britain was once so expansive that it included the House of Commons’ dining room menu. No reasonable person would assume secrecy requirements for such details. In fact, much included in the trove of diplomatic cables released by WikiLeaks was mundane. Indeed, the level of American security accorded to the cables was relatively low – with access granted to several million people connected to the Secret Internet Protocol Router Network SIPRNet used to share information in the ‘war on terror’. It is unlikely the United States government would have granted such extensive access if it had considered the cables contained highly sensitive information.

The other point worth noting about the contentious releases is that WikiLeaks subjected itself to external review by agreeing that the editors of mainstream news outlets should vet the material in order to remove any information judged to be genuinely sensitive, This is an important point. In the case of the US cables, at least, WikiLeaks was prepared to accept the judgement of editors who society routinely trusts to be prudent and responsible when determining what should or should not be published. The editors involved in handling the sensitive diplomatic material have been explicit about their determination to exclude material that would have caused risk, rather than mere embarrassment, to others.

As most commentators have noted, the debate about WikiLeaks is about much more than the particular case of how the US diplomatic cables were handled. The larger question concerns the extent to which society should have access to public information that is relevant to its interests. There is a significant difference, however, between what is in the public interest and what the public happens to be interested in – a distinction not always applied by the media. Governments often claim to be guardians of the public interest. They claim a corresponding right to decide what the public should know – and when we should know it. It is also clear, however, that governments will often make decisions in line with personal or political interests – interests that are not always aligned with those of their citizens. Add to this the kind of caution that would include a dining room menu under an official secrets act and it soon becomes evident that it would be unwise to rely exclusively on the judgement of governments.

The vast majority of people recognise the importance of maintaining some measure of secrecy in their own lives. They also know governments must keep some matters secret, for example for reasons of national security. What WikiLeaks has prompted is a public discussion about where the balance should lie. The June 2011 Intelligence Squared debate which is now available at iq2oz.com pondered the proposition WikiLeaks is a force for good. Speakers for: Dr Suelette Dreyfus, Kristinn Hrafnsson, current spokesperson for WikiLeaks, Professor Stuart Rees. Speakers against: Gareth Evans, Dr Michael Fullilove, Tom Switzer.

Dr Simon Longstaff is Executive Director of St James Ethics Centre and Chair of Intelligence Squared Australia debates.

This article will also be published in the St James Ethics Centre Newsletter and at thepunch.com

 

WikiLeaks: legal status and political choices

By Jake Goldenfein

A survey of whether or not WikiLeaks is a force for good does not necessarily consider the legality of its actions. At this stage there is only indirect legal action against WikiLeaks. For example, many consider the accusations against Assange to be politically directed at the WikiLeaks organisation, and the severe incarceration of Bradley Manning, the source of a great deal of WikiLeaks material, surely has a deterrent motivation targeting potential leakers. Beyond that, neither WikiLeaks nor its activities are outlawed. A Grand Jury in the US is attempting to assemble a case against WikiLeaks for crimes under the Espionage Act, Computer Fraud and Abuse Act, and for conspiracy, however most commentators consider constitutional free speech protections to be a significant impediment to prosecution. But WikiLeaks legal status also reflects its ‘organisational status.’ That is to say, whether WikiLeaks is considered a journalistic organisation, a publishing organisation, or simply a source, affects which laws are relevant. The laws applicable to each category vary, and despite often being treated by mainstream media as simply a source of leaks, WikiLeaks is not being prosecuted as such, meaning it need only comply with laws relevant for journalists or publishers. American precedent such as the famous Pentagon Papers case suggests that the messy balance between the administration’s need for secrecy and the public’s right and need to know should enable the administration to function, subject to occasional disclosures to keep it honest. ‘The rare exceptions would require a combination of high likelihood, magnitude, and immediacy of harm to justify suppression,’ meaning there is a very high threshold to WikiLeaks prosecution under that doctrine.

It is difficult to assess whether WikiLeaks legal situation would be different if pursued under Australian law considering we have no express constitutional right to free speech (though we do have an implied right of political communication), and our whistle-blowing laws do not apply to the media at large. Commonwealth v John Fairfax and Sons (1980) 147 CLR 39 (‘Defence Papers Case’) and Attorney-General v Heinemann Publishers (1987) 8 NSWLR 341; (1988) 165 CLR 30 (‘Spycatcher’) are potentially relevant Australian cases indicating that under our law WikiLeaks may be exposed to a breach of confidence action, and the Fairfax case points out that copyright may also be relied upon where documents are copied. But prospects of success are not guaranteed and there are some important limitations and qualifications on liability (for instance the defence of fair dealing for purposes of news reporting vis-à-vis copyright, the need to demonstrate Australian public interests vis-à-vis breach of confidence). Of course assessments here will be very fact specific and we do not necessarily know all the relevant facts at this stage. Katy Barnett wrote a nice piece on ‘Spycatcher and Wikileaks’ in the January issue of the Fortnightly Review.

Despite its relatively stable legal status, WikiLeaks has certainly still come under attack from institutional actors. And those attacks, generally effected through privately owned intermediaries, expose some of the more concerning aspects of the new media environment in relation to freedom of the press. ‘Extra-legal’ actions (including denial of service cyber-attacks) by companies that control crucial aspects of cyber-infrastructure like Visa, Mastercard, Paypal, EveryDNS, and Amazon, betray a private-public partnership with dangerous censorship implications. Scholars like Yochai Benkler suggest these censorship actions would have been practically impossible under legal and constitutional frameworks.

After the original reaction to the ‘CableGate’ leaks, the rhetorical framing of WikiLeaks shifted away from a major threat to the peaceful world order towards a more realistic suggestion that it undermines the checks, balances and accountability established within traditional media organisations. Indeed, no significant harm (apart from embarrassment) to any diplomatic or military institution has yet been claimed as a consequence of the leaks, suggesting the established media and state institutions reacted primarily from a motivation of anxiety than actual danger. However, that anxiety could be valid, as WikiLeaks may have serious implications for traditional media models as well has profound consequences for nation states and democracy. For example, Professor John Keane from University of Sydney places WikiLeaks at the vanguard of the emerging ‘monitory democracy’ in which democracy has shifted away from simple ‘parliamentary democracy’ towards a form of democracy that includes the permanent scrutiny of power wherever it is exercised.

Therefore, if we take the starting position that WikiLeaks’ publication of materials (often in conjunction with mainstream media) is not clearly illegal (although not clearly legal either), and that the releases seem to have caused no real damage to date at least, then deciding whether or not WikiLeaks is a force for good requires the personal determination of whether we approve of WikiLeaks’ fundament and mission, an inherently political decision. On the whole do we consider the outcomes of WikiLeaks’ actions beneficial?

WikiLeaks’ neutron bomb effect described above by Dr Longstaff, may indeed curtail some exchange of information, however that itself is not determinative of whether the outcomes of WikiLeaks actions are positive or negative. Without doubt governments need secrecy for certain actions (for example effective diplomatic practice), however they also need sufficient trust from the citizenry to maintain that secrecy. Raimond Gaita recently said in a lecture at Melbourne Law School that the current political situation (for example the spin and misinformation) has led to an absence of the conditions of sober judgement and ultimately an incapacity for people to consent to their states’ actions. In that sense WikiLeaks is facilitating the information necessary for consensual governance. Another fundamental effect was described by Glenn Greenwald, who recently wrote that the republican ideal requires that governments are transparent and citizens are private, yet the past decade has seen a wholesale reversal of that ideal. WikiLeaks therefore stands as a subversion of that reversal, a goal that goes beyond embarrassing diplomats or bringing political pressure to end a senseless war. Finally, commentator Guy Rundel has argued WikiLeaks gives whistleblowers a new choice, a chance to avoid the decision between life and truth, with the outcome that pursuing honesty can result in a flourishing of life rather than a suicide mission. Perhaps these outcomes are worth diplomats being slightly more cautious in how they communicate, or perhaps not.

Jake Goldenfein is a PhD student at the Melbourne Law School

This article will also be published in the St James Ethics Centre Newsletter.

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Twitter Undoes UK Super Injunctions

June 2, 2011

By Katy Barnett

The law is generally unsuccessful when its ability to prevent the flow of information is pushed to the limit. As I’ve described in an earlier post, the Spycatcher case is a primary example: the more the British government attempted to prevent Peter Wright from publishing his book on MI5, the more publicity they gave it. And the English government met very little sympathy from courts in other jurisdictions when it attempted to suppress Spycatcher in Australia, New Zealand and Hong Kong, even though those jurisdictions were former colonial outposts.

The latest iteration of this particular battle has occurred on Twitter in the UK. A user named @InjunctionSuper set up an account which made a number of allegations against a variety of celebrities. Among other allegations, a prominent footballer (later outed as Manchester United’s Ryan Giggs) was accused of having an affair with a reality television star (an injunction preventing publication of allegations had been awarded by Eady J in CTB v News Group Ltd [2011] EWHC 1232 in April); an actor was said to have used the services of a prostitute named Helen Wood; and it was alleged that Jeremy Clarkson had an injunction preventing the publication or mention of intimate photographs of himself with Jemima Khan.

All these people were said to have had “super injunctions” which prevent not only publication of the details of the allegations and the identity of those concerned, but even prevent people and media outlets from reporting on the existence of the injunction itself. Importantly, to breach the injunction, or to knowingly assist in or permit a breach of the injunction, constitutes contempt of court. People who breach such injunctions may be imprisoned, fined or have their assets seized. In the event, some of the celebrities in question did not have “super injunctions”, but merely anonymity injunctions (which prevent disclosure of confidential information and the identity of one or both of the parties, but do not prevent discussion of their existence).

Ironically, the story broke when Khan responded to the tweet, vehemently denying it:

Only minutes after the claims were published on Sunday, 37-year-old Mrs Khan denied having an affair with Clarkson, saying the allegation was ‘untrue and upsetting’.

‘OMG – Rumour that I have a super injunction preventing publication of “intimate” photos of me and Jeremy Clarkson. NOT TRUE!’ she tweeted.

A minute later she added: ‘I have no super injunction and I had dinner with Jeremy and his wife last night. Twitter, Stop!’

She added: ‘The proof that I haven’t got a super injunction is that the papers have printed my name (and no one else’s – for fear of being sued).’

The socialite received supportive text messages from both Clarkson and his wife Francie after the allegations emerged.

Clarkson used humour to dismiss the claims. In a text to Mrs Khan he said: ‘It’s odd. I’m sure I’d remember if any photos of us existed.’

Khan is correct: the media showed no compunction in mentioning her name, whereas it has been cautious about mentioning other people.

Of course, “super injunctions” and anonymised injunctions are very expensive to obtain, and as media lawyer Mark Stephens commented to The Independent: ‘It’s the beginning of the end. Even a rather thick footballer is going to think twice before handing £100,000 to a greedy lawyer if the greedy lawyer can’t guarantee that it will actually stay secret.” The Daily Mail reported that Giggs had spent £150,000 on lawyers to keep the details of his affair secret, but paradoxically, the greater his efforts to keep the affair secret, the more publicity it received (a clear instance of the ‘Streisand effect‘ at work yet again). As publicist Max Clifford noted in the Mail article linked above, Giggs might have been better off not to resort to the law at all. He is now alleged to have started proceedings against Twitter and “persons unknown”, using the initials ‘CTB’. This rather nice graph at the Guardian shows how mentions of Giggs’ name spiked on Twitter on 20 May once his proceedings against Twitter were announced:

Could those who mention Giggs’ name in the UK be the subject of legal proceedings? It is estimated that about 30,000 Twitter users have breached injunctions by tweeting the identities of various people covered by those injunctions. It has also been reported that the Attorney-General is considering whether to prosecute a journalist for breaching a privacy order involving a different footballer. Meanwhile, a Scots newspaper published details about Giggs, arguing that English law did not extend to Scotland, although — despite the recent success of the SNP in elections — this would seem doubtful.

With impeccable timing, the Master of the Rolls of the UK Court of Appeal, recently released report about “super injunctions”. In summary, the Committee concluded:

  • The principle of open justice is a fundamental constitutional principle which should only be derogated from where “strictly necessary in order to secure the proper administration of justice”;
  • There is a difference between super injunctions (which restrain a person from publishing confidential and private information about the claimant where the very existence of the injunction may not be disclosed) and anonymised injunctions (which merely restrain a person from publishing confidential and private information about the claimant where the names of either or both of the parties to the proceedings are not stated);
  • Since Terry v Persons Unknown [2010] 1 FCR 659, as far as the Committee is aware, only two known super-injunctions have been granted to protect information said to be private or confidential;
  • ‘As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent. Where super-injunctions and anonymised injunctions are granted they should be kept under review by the court’ and they should have clear return dates (pursuant to Terry);
  • In the recent past, super-injunctions and anonymised injunctions have also sometimes been more widely used than is strictly necessary by UK courts; and
  • A new procedure should be developed which allows the media to be informed of such injunctions in advance, although there may be times when this is not appropriate.

Interestingly, the Committee did not consider new media or the difficulties associated with controlling it in any detail. One of the key questions is whether such orders can effectively be enforced against entities such as Google and Twitter. Giggs’ case may represent a testing ground in this regard. Another difficulty is that many users are anonymous, making it difficult to find out who they are. Further, it is difficult to restrain publications outside the jurisdiction (as the Spycatcher cases showed in an earlier era).

As was noted in The Independent, the anonymised injunctions which Twitter users breached are only those involving the alleged sexual indiscretions of celebrities. Recently, UK Twitter users have been banned from identifying a brain-damaged woman whose mother wishes to remove life-support, but no one has breached this order. Since 2000, with the enactment of Article 8 of the ECHR (protecting privacy) into UK law, there has been an expanding use of breach of confidence in the UK to restrain breaches of privacy (see Campbell v Mirror Groups Newspapers Ltd and Douglas v Hello! (No. 3)). Perhaps the public are reacting by reasserting the sentiments of Lord Denning in Woodward v Hutchins, a case dealing with unsavoury allegations in the Daily Mirror newspaper about the private life of Tom Jones and other pop stars. Denning LJ said:

If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected … In this case the balance comes down in favour of the truth being told, even if it should involve some breach of confidential information. As there should be ‘truth in advertising’, so there should be truth in publicity. The public should not be misled.

Celebrities seek publicity in the press in exchange for public adulation, but audiences often want a more “true” picture than the highly managed images the celebrities want to project. Perhaps this is why Twitterers are particularly wont to breach injunctions relating to celebrity privacy. Perhaps they dislike hypocrisy (self-presented “family man” turns out to be a serial philanderer etc). Or perhaps it’s simply the Streisand effect writ large – the very fact that the information is prohibited is what makes it attractive and interesting to people.

Ken Parish at Club Troppo has a good summary of the legal and practical issues involved with these kind of cases:

My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint, so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient.  Where that is the case I don’t see that the public interest in freedom of speech has much force, irrespective of the degree of fame of the subject of salacious information.  The fact that a person is famous does not mean they forfeit all moral claim to personal privacy in my view.

On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating.  In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries.  Most people lived in villages and knew everyone else’s business anyway.  Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.

Like Ken, I feel that we do not have a right to prurient information about celebrities: but whether the law can actually control the dissemination of such information in the present climate is quite another question.

Katy Barnett is a Lecturer at the University of Melbourne Law School

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Too Many Academics? The Experience of Privacy Law Reform

March 4, 2011

By Professor Megan Richardson

Are there too many academics involved in law reform? There are obvious benefits to academic input (speaking for law academics generally). We have expertise, excellent critical facilities and an enthusiasm for law reform. I do not know a single law academic who does not want to make things better in their chosen field. We often dwell on the need for improvements in the law in our articles, chapters and books. But we can also be opinionated and individualistic. And since our academic reputation is built around personal influence rather than achieving group success we find it hard to give in when it comes to a disputed position of principle.

Take privacy law reform for instance. When the Australian Law Reform Commission compiled a group of academics, of which I was one, to define ‘privacy’ for purposes of its law reform project in 2006, we spent a day in a room arguing about the meaning of privacy and since we could not agree on any coherent and constructive concept for law reform purposes defaulted to the most anodyne definition we could all agree on. Since then, each of the Australian, New South Wales and Victorian Law Reform Commissions has reported on privacy. Each had much support and involvement from academics. And each has come up with a different set of proposals for a privacy cause of action.

Although it is widely agreed that it would be best to have a single set of privacy standards that apply uniformly through all of the Australian states and territories, our law reform bodies are unable apparently to come to a common position on what those standards should be. The Australian Law Reform Commission in its 2008 report For Your Information only wants invasions of privacy that would be highly offensive to the reasonable person of ordinary sensibilities to be the subject of a statutory cause of action.

This is in addition to a general requirement that the claimant has a reasonable expectation of privacy. The New South Wales Commission in its 2009 Invasion of Privacy report would dispense with the highly offensive threshold and rest its standard for a statutory cause of action on violation of a reasonable expectation of privacy.

The Victorian Commission in its 2010 Report on Surveillance in Public Places would reinstate a high offensiveness threshold and also specify two privacy causes of action as (1) public disclosure of private information and (2) intrusion on seclusion (the latter read broadly here to encompass covert personally intrusive conduct such as upskirt filming in public places). In addition, it would add a specific defence of public interest. By contrast, the Australian and New South Wales Commissions take the view that the public interest in the defendant’s actions can be adequately accommodated in the general standards.

All these recommendations are interesting to have on the table but the practical question is will they produce useful legal change? Or will we end up in the position where for lack of agreement on what should be done nothing is done?

It is already very clear that there will be opposition from parts of the media to any proposals for privacy law reform, with some quite persuasive arguments being mounted – for instance, that we have got along fine without legislative privacy protection in the past; that the common law provides or will provide sufficient protection where needed including through the equitable action for breach of confidence which has been recognised by courts as giving considerable protection against the misuse of private information; that Australian media are generally self-restrained; and that there are large segments of the population who don’t care much for privacy anyway.

Each of these arguments can be countered: for instance, that the common law’s protection of privacy while good suffers from some uncertainty and lack of transparency; that although the media may be generally self-restrained there have been cases involving media defendants and anyway controlling the media is not the only concern; that although individual preferences for privacy may vary individuals may still legitimately desire a degree of individual control on matters essentially going to personal identity. But until there is a clear consensus on the shape of privacy law reform, I suspect that for Australian legislators it will be all too easy to stick with the devil we know.

For my part, although I was a member of the New South Wales advisory group and involved in its proposals, I like the way the Victorian proposals provide for an explicit balancing between privacy and free speech since I think media and other defendants should have the opportunity to justify their actions as in the public interest.

If supporting a particular claim of privacy is clearly against the public interest (and I am talking about the public interest in John Stuart Mill’s sense of genuine public benefit or avoidance of harm and not simply the satisfaction of public curiosity), why should our laws and legal institutions support it?

On the other hand, I do not support the Australian and Victorian recommendation for a threshold of high offensiveness to the reasonable person. I fear this would be an excuse for some defendants to seek to dismiss genuinely felt claims of privacy as trivial – so avoiding the need to defend their actions as serving the public interest under the public interest defence.

In short, I prefer the New South Wales proposal for reasonable expectation of privacy as the threshold but followed up with a public interest defence to a prima facie privacy invasion. Moreover, I also prefer a generic privacy cause of action to more specifically delineated ones that may not capture every instance of privacy invasion as experienced down the line. ‘Seclusion’, for instance, is a potentially limiting concept no matter how broadly some may seek to construe it. And I cannot understand why overt surveillance should be treated more leniently than covert surveillance. I could go on … But, by now, in true academic fashion I am drifting down the path of fashioning yet another set of proposals for privacy law reform.

Perhaps if Australia was a less populous, less diverse and less argumentative society we would solve the problem of multiple opinions from multiple academics by having only a handful of academics who can basically agree involved in law reform functions in a given area. That’s what happens in New Zealand. For instance, when the New Zealand Law Commission undertook the task of reporting on privacy law reform it established its own ‘academic reference committee’. Yet this did not prevent it coming up with a single set of proposals (to let the common law continue to develop its own privacy tort/s, as already indicated by the courts) in its 2010 report on Invasion of Privacy. But Australia is not New Zealand and it seems we cannot avoid having continuing discussion and debate on issues to do with privacy law reform, especially when academics are involved.

Megan Richardson is a Professor of Law at The University of Melbourne.

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Legal Eagle analyses the digital landscape – cyber-bullying and sexting.

March 25, 2010

by Katy Barnett

1. CYBER-BULLYING

Cyber-bullying in Australia – Facebook

It’s not only Lara Bingle and other celebrities who have to worry about cyber-bullying, “sexting” and how to control the publication of generally offensive material. In recent weeks, a few incidents in Australia have raised these questions. First, offensive material was posted on a Facebook tribute page for 12-year-old Brisbane schoolboy Elliott Fletcher, who was stabbed to death by a fellow pupil at his school. Soon after, offensive material was also posted on a Facebook tribute page set up for murdered Bundaberg schoolgirl Trinity Bates. Meanwhile, some members of a Brisbane school formed a Facebook group which mocked the disappearance of Daniel Morcambe in 2003. Some other students from a different school formed a group which bullied a staff member, and were “disciplined”. And apparently there’s a whole genre of photos known as “revenge porn” out there on the web (as the name suggests, it involves an jilted lover posting explicit material about an ex-partner).

Cyber-bullying in the US – the MySpace case

The problem of bullying via the internet is not new. In the US in 2006, the issue came to the attention of the world after a 13-year-old girl named Megan Meier committed suicide. Meier had made contact with a 16-year-old boy named “Josh Evans” on MySpace. The boy purported to be attracted to Meier, but suddenly the tone of the messages turned nasty, and the final message sent from the Evans account said, “Everybody in O’Fallon knows how you are. You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.” Meier replied, “You’re the kind of boy a girl would kill herself over.” 20 minutes later, she committed suicide.

As it turned out, there was no “Josh Evans”. The profile was fake, and it had been intended to lure Meier into an online relationship with “Josh” to find out what Megan was saying about Sarah Drew, a former friend and neighbour. Sarah’s mother, Lori Drew, and an 18-year-old employee of Lori Drew’s, Ashley Grills helped set up that account and, along with Sarah Drew, sent messages purporting to be from “Josh Evans”.

Lori Drew was prosecuted under the US Computer Fraud and Abuse Act for conspiracy and intentionally causing emotional distress. She was initially found guilty of a misdemeanor breach of the CFAA. On appeal, however, Drew was acquitted, as Wired explains:

The case against Drew hinged on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking. But U.S. District Judge George Wu found the premise troubling.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”

Cyber-bullying in the UK – Facebook case

By contrast, in a recent UK case last year (briefly summarised here) an 18-year-old girl was sentenced to imprisonment after threatening to kill another girl on her Facebook page update. This was the first case of its kind in the United Kingdom.

Cyber-bulling in Europe

Meanwhile, in Italy, Google executives have recently been convicted of privacy violation for hosting a video in which a boy with autism is being bullied and taunted by four other classmates.

2. SEXTING

And then there is the difficulty of “sexting” (sending sexually explicit pictures via the Internet or via mobile phones).  In the US people who send sexually explicit messages are potentially placed on a sexual offenders’ register, and in Queensland at least, there is legislation  which could result in a similar situation.

However, it has been criticised by those who feel that naive teenagers may be ensnared by the laws. Certainly in other States as well, the photography and distribution of pictures of the genital or anal area is a criminal offence (see eg, s 41B and s 41C, Summary Offences Act 1966 (Vic)). Apparently, a survey in an Australian teen magazine revealed 40% of readers had been asked to send a naked or semi-naked image of themselves over the internet.

3. Current Civil Laws in Australia

All these cases raise a number of important questions. How far should the providers of social networking sites and other sites control what happens on these sites? Does the law operate to prevent this kind of conduct, and should it be amended to do so? To an extent, it all depends how far one believes the law should reach, and whether the law can usefully regulate conduct such as this. My own interest, of course, is on the civil law (rather than criminal law) and whether it can be usefully be adapted in a way that protects people from being bullied on the internet, but also allows reasonable freedom of speech.

Note that the criminal law in this area is being currently being reviewed by the Senate.  The ACMA has also released their third and final report on “Online risk and safety in the digital economy.”

Defamation

Defamation could be used against bullies who target a particular individual online, as it prevents publications which injure reputation by disparaging a person, causing others to shun or avoid a person, or subjecting a person to hatred, ridicule and contempt. Anonymity is not necessarily a protection against defamation, either. In a case in the US involving model Liskula Cohen, Google, who hosts Blogger, was forced to hand over the details of an anonymous blogger so that the blogger could be served with a defamation writ. (Of course, the defamation action could be said to be counterproductive, as it meant that the details of the defamatory statement were far more widely publicised than they would otherwise have been – a phenomenon known as the “Streisand effect“.)

Breach of Confidence

There may also be situations where an online communication may constitute a breach of confidence (particularly if images or content had been posted on a private setting, but are then broadcast publicly without the consent of the owner).

Breach of a “Tort of Privacy” ?

In Australia, at least, it would be more difficult to allege a breach of privacy. The most we have are some obiter comments from the High Court in ABC v Lenah Game Meats, in which it was concluded that Victoria Park Racing v Taylor did not preclude the development of a tort of invasion of privacy in Australia.

Some lower courts have since recognised an action for invasion of privacy.

  • In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy.”
  • In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered.)
  • In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy.
  • And most recently, in Giller v Procopets, Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue.

So in Australia, at least, any tort of breach of privacy is nascent. Conversely, English breach of confidence law is much more clearly moving towards breach of privacy because of the influence of the European Convention on Human Rights (ECHR).

“Intentional Infliction of Mental Suffering”?

Also in Giller v Procopets, Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm.

In the US there is already a well established tort of intentional inflection of mental suffering (see for example, this post on the US case, Moreno v Hanford Sentinel). Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Conversely, Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that a bully may be sued for intentional infliction of mental distress if US law is taken on board here.

Jurisdiction

Of course, with the internet, there may be a problem with jurisdiction if the wrongdoer is interstate or overseas, but Australian authority at this point suggests the courts are willing to work around this. Controversially, in the Gutnick case, the court allowed Joe Gutnick to sue for defamation in Victoria despite the fact that the defamatory material was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria.

3. CONCLUSION

Perhaps if a few cases are brought against online bullies, it may bring awareness to people that what they are doing is wrong in law, not just morally wrong. Still, I can’t help thinking that a large number of perpetrators of online bullying would be likely to be teenagers against whom there would be little point in proceeding. I suspect criminal courts would be unwilling to lumber young people with a criminal record, and in civil claims, it is unlikely that young people would be able to pay damages. The law can only go so far. It’s also up to parents to supervise their children as much as they can, and to educate their children about the risks of allowing people to take compromising images of themselves.

Katy Barnett is a PhD candidate at the Melbourne Law School

1 Comment | Bingle, breach of confidence, cyber-bullying, defamation, facebook, Internet, law, legal, Media law, privacy, sexting, Uncategorized | Tagged: , , , , , , | Permalink
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“Where the Bloody Hell Are You?”: Lara Bingle in Search of a Cause of Action

March 12, 2010

by Jason Bosland and Vicki Huang

On March 1, 2010, Woman’s Day published a nude picture of Lara Bingle which was allegedly taken in 2006 while she had a “secret” affair with AFL star Brendon Fevola (who was and still is married to Alex Fevola).

The image shows Bingle in a shower trying to cover herself with her hands.  The expression on her face clearly depicts distress.  Apparently, the photo had been passed by Fevola to other people and had been “doing the rounds” for years.

The day after publication by Woman’s Day, Lara Bingle by way of her publicist Max Markson, announced she would take legal action against Fevola for 1) breach of privacy, 2) defamation and 3) misuse of her image.

Fiona Connolly said that Woman’s Day which has about 400,000 readers, published the photo because it was “going to come out anyway”.  She also said that Woman’s Day did not pay for the photo and would not disclose how they came to obtain the photo.

Lara Bingle’s publicist is reported to have said that Bingle had retained all her contracts and would move past the incident.

In an interesting turn of events, on March 8, Woman’s Day (the same magazine that printed the photo) published an exclusive interview with Bingle depicting “her side of the story”.  The fee for the interview was not disclosed but is rumoured to be around $200,000.  According to her publicist, Bingle has decided to give an “undisclosed amount” of money to the White Ribbon Foundation which is a charity that opposes domestic violence.

The controversy has sparked a myriad of comments.  The Fortnightly Review looks at the issue from a legal perspective.  We believe it is an important case given the rise of cyber-bullying and “sext-ing” in the community – something we will be commenting on in a future issue of the FR. We emphasise that Bingle’s statement of claim has not become available so we comment on the facts that are thus far publicly known.

Privacy and Misuse of Image

It is unclear just what causes of action is meant by the terms “breach of privacy” and “misuse of image”.  Is Bingle’s intention to argue that an Australian court should recognise a common law cause of action for breach of privacy (flagged as a possibility in ABC v Lenah Game Meats) – or will she be content to rely on the existing law of breach of confidence, as used for instance in the recent Victorian Court of Appeal decision in Giller v Procopets.  Unfortunately, she will have to traverse this tricky field of developing law very carefully. The picture is even more confused when it comes to the claim for misuse of image.  Is this again shorthand for privacy arguments considered above?  Or might she be considering actions for passing off and misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), as celebrities have often done in the past (including Bingle herself).  The difficulty with a passing off or TPA claim is that Bingle will have to show that Fevola made some kind of misrepresentation in the course of trade – and we find it hard to see either a misrepresentation or conduct in the course of trade on facts currently known to us.

The civil remedies we believe she may be seeking are uncertain here.  Perhaps the criminal law as suggested by other bloggers may give her some satisfaction.  Nevertheless, her arguments as to defamation do target a well developed area of law, however it is unclear as to whether she can satisfy the legal elements.

Defamation

From the facts known, it appears that Bingle is claiming that the distribution by Fevola of the photograph between various members of the AFL and the Australian Cricket Team amounts to defamation.

In order to make out the defamation cause of action, she is required to show that the publication of the photograph, assessed as a whole, conveyed one or more defamatory imputations about her.  There are three non-exhaustive ‘tests’ for determining whether an imputation carries a defamatory meaning.  At a very basic level, it must, in the eyes of the ordinary, reasonable reader or viewer:

  1. lower the plaintiff in the estimation of others;
  2. cause the plaintiff to be shunned or avoided; or
  3. expose the plaintiff to hatred, contempt or ridicule.

And, herein lies the main obstacle for Bingle’s claim. It is difficult to see how the first two tests – the ‘lowering estimation’ and ‘shun and avoid’ tests – could be satisfied merely on the basis that Bingle was naked in the shower and had an unwanted photograph taken of her.  Indeed, we have all been naked in the shower, and it is unlikely that the ordinary, reasonable person would think less of Bingle or shun and avoid her simply on that basis.  Certainly, as required under the ‘lowering estimation’ test, it is hard to see how a reasonable, ordinary viewer of the photograph could ascribe any blame to Bingle for the taking of the photograph.

A conclusion about this, of course, depends on any additional material that may have accompanied the distribution of the photograph and which may modify the imputations carried by its publication – ie, it may, depending on the circumstances of the publication, carry an imputation of promiscuity or that she acquiesced in the taking and distribution of the photograph (see, in particular, Shepherd v Walsh & Ors ).  There is also the possibility, of course, that Bingle might plead defamatory meaning based on ‘true innuendo’ (ie by relying on extrinsic facts that were, in fact, known to its recipients).

Under the third test, however, there is authority to suggest that Bingle might have, at the very least, an arguable case on the basis of the publication of the photograph itself.  Thus, it was held in the well-known case of Ettinghausen v Australian Consolidated Press that the publication in a magazine (called ‘HQ’) of a photograph of the plaintiff, a famous Rugby League footballer, naked in the shower with his penis exposed, had the capacity to defame the plaintiff by exposing him to a more than trivial degree of ridicule.  The imputation pled by the plaintiff in that case was simply that ‘[t]he plaintiff is a person whose genitals have been exposed to the readers of the defendant’s magazine ‘HQ’, a publication with a wide readership.’  The ease with which the judge, Hunt J, arrived at his conclusion is astounding (although this can be, at least partly, explained on the basis that this imputation was pled in the alternative).  There was absolutely no analysis whatsoever as to how this imputation had the capacity to expose the plaintiff to ridicule, which has been held to mean ‘deserving to be laughed at’ or ‘absurd’ (see Boyd v Mirror Newspapers Ltd [1980] NSWLR 449 at 453). Significantly, there was no suggestion that there was anything unusual about the way the plaintiff was depicted. There was nothing ‘grotesque, monstrous or obscene’ about the photograph and it did not seem to make a ‘preposterously ridiculous spectacle’ of the plaintiff.  It was simply a photograph of a naked man in a communal shower, as is the usual practice following any football match.

In light of this yardstick, it is difficult to see how the photograph of Bingle – which also involves mere nudity – should be decided any differently, at least in relation to the judge’s question as to whether or not the photograph has the capacity to defame.  This leaves, of course, the further question of whether the photograph in fact bears the defamatory meaning – a question of fact not answered by the jury in Ettinghausen.

One potential problem for Bingle, however, is that even if defamatory meaning is established on the basis that a reasonable reader would view the plaintiff in a ridiculous light, it would be particularly easy for Fevola to rely on the defence of justification.  Thus, it is likely that Fevola could defend the publication on that basis that the imputation – the nudity – is, in fact, true.  In NSW, the scope of the truth defence in this context underwent particularly significant change following the introduction of the uniform defamation laws across Australia.  In particular, it removed the requirement under the justification defence (as it had previously operated in that state) that the publication must also serve the public interest. Indeed, one of the issues raised when the Defamation Act 2005 (NSW) was passed was that the removal of the public interest requirement under the justification defence would put a stop to defamation acting as de facto privacy protection. Defendants would escape liability for invasions of privacy by simply proving that the defamatory imputations concerning the plaintiff’s private life were true. This case brings such concerns to the fore, but also highlights the inherent problem of protecting what are essentially privacy interests under a cause of action for which it is not designed.

We look forward to reading Bingle’s statement of claim.  We also look forward to your comments.

9 Comments | Bingle, breach of confidence, defamation, Media law, passing off, privacy, TPA, Uncategorized | Tagged: , , , , , , , , | Permalink
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