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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