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

(return to the top of this edition)


Twitter – ripe ground for litigation?

May 6, 2010

By Elisabeth Cooke

Created in 2006, Twitter is a free social networking and micro blogging site available to anyone with an Internet connect and an email address. It is based in San Francisco, USA, but is available in French, German, Italian, Japanese and Spanish. There are more than 100 million users worldwide.

‘Tweets’ are posted on the authors Twitter page and are available either to friends and followers or to anyone on the Internet, depending on individual privacy settings.

A ‘tweet’ consists of a maximum 140 characters, expressing all sorts of information and comments. You can follow President Obama (http://twitter.com/BarackObama), leading newspapers around the world, the World Health Organization (http://twitter.com/whonews) or Justin – a guy in the states who tweets all sorts of comments from his 74 year old father (http://twitter.com/shitmydadsays), which I am ashamed to say has become a personal favourite.

Twitter has quickly become a forum to disseminate information across the globe to a tremendously high number of users. Of course, this has opened the door to marketers and spammers the world over. Looking for a coupon or special deals for movie theatres? Be sure to check Twitter! Businesses have begun offering bargains to consumers who provide ‘special offer’ codes from twitter postings.

On April 14 2010, the Library of Congress in Washington DC recently tweeted, ‘Library to acquire ENTIRE Twitter archive – ALL public tweets, ever, since March 2006! Details to follow.’ While it is unclear what actual use the public tweets archive will fill, it demonstrates the level popularity of this social networking phenomenon.

With the ability to speak out and publish an opinion or comment so effortless comes the inevitable question: What happens when things go wrong? 

Last year, Courtney Love became the first celebrity to be sued for defamation over comments she posted on her Twitter and MySpace accounts. Clothing designer Dawn Simorangkir (under the label Boudior Queen) filed a complaint in the Los Angeles Superior court suing for defamation, invasion of privacy and infliction of emotional distress. There are 10 allegedly defamatory tweets in question that were all written and posted within twenty-one minutes. The most popular sample of Love’s tweets is “oi vey don’t f— with my wardrobe or you will end up in a circle of corched eaeth hunted til your dead”. The case is currently pending.

The legal implications for Twitter users are currently coming to light. The United States has been working their way through defamation claims resulting from posts on twitter, but we have yet to see the implications of cross boarder ‘tweets’ bringing defamation claims. In the Gutnick case, the High Court found that an article printed in an online magazine in the United States that was downloaded in Australia constituted ‘publishing’ under the act. The court noted that was the cost of an American company doing business in Australia – they needed to be aware of Australian defamation laws.

But where does that leave tweeters? Twitter is not just about doing business – individuals, friends, newspapers, and celebrities use it. Celebrity ‘tweets’ are increasing in media attention. This social medium provides a unique forum that courts are only just beginning to approach. While we have yet to see the legal implications of ‘tweeting’, perhaps we can find out on twitter – the US Supreme Court tweets (http://twitter.com/USSupremeCourt). The High Court of Australia however does not. 

Elisabeth Cooke is a JD candidate at the University of Melbourne


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


“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.


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