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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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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Online Dating, Dating Apps and Privacy

October 14, 2010

by Elisabeth K. Cooke

Generally, it seems counter intuitive to use the most accessible and public forum available to find a person for something as private and intimate as a dating relationship. However, in the United States alone, 20 million people per month visit online dating sites. Online dating services cater to a variety of interests include the general run of the mill categories, for example country of origin, religion and age. If you were under the impression that online dating sites were only for singles – think again. There are also sites that cater to married men and women looking for an affair. The Ashley Madison Agency grabbed headlines in June over their controversial Sydney Airport billboard slogan ‘Life is short. Have an affair while in Sydney’.

While online dating sites provide a number of privacy concerns, users face a dilemma: in order to effectively use online dating services, they must provide some personal information, but providing that information puts them at risk of privacy violations. Often online dating sites will share information with 3rd party advertisers as a term and condition of use. Even searching for ‘privacy issues’ on a basic google search pops up ads for online dating sites. The Canadian Privacy Commissioner has launched an inquiry into online dating sites particularly concerning what happens to users’ personal information once the user wishes to terminate the account. The inquiry is currently pending.

New apps with new risks: GRINDR

While it may seem that online dating services are making the dating world as easy as online shopping, the Grindr iPhone application has taken this concept much further. Created in 2009 by Joel Simkhai of Los Angeles, California, Grindr is billed as ‘the go-to place for gay, bi, and curious guys to meet.’ Grindr is a location based free downloadable application available on Itunes and is used in 162 countries worldwide. Grindr is mobile and works based on your location, tracking you on a map. Grindr uses the GPS technology in the iPhone (or Blackberry and Wi-Fi in the iPod Touch) to determine your exact location, instantly displaying users profiles to other users around them.

Quite literally, the profiles of other men in the vicinity will pop up in order of proximity, (closest appearing at the top of the list) in exact number of feet or metres. The free version allows users to see up to 100 profiles and an extra 2.99$ a month increases viewable profiles to 200 more profiles. You can immediately see others’ locations on a map, initiate an online chat, view their photos, tag particular users as ‘favourites’ and send private messages. Of course you can follow Grindr on Facebook and Twitter.

There is no need for heterosexual or lesbian envy. Grindr is currently working on new versions for both of those markets.

Grindr’s privacy policy assures users that they can remain 100% anonymous. Users are not required to provide an email address or account registration. They can choose not to have photos of themselves (although they are warned that will probably get more responses from local men by including a photo and some information). Grindr will not share your personal information or location with any third parties other than advertisers. However, Grindr is silent regarding how they will respond to account deactivation or termination. Do they delete your profile? Can other users continue to search for you?

In providing an arguably high level of convenience to men looking for a date, Grindr has developed a way to lift the veil of privacy on dating and social networking sites. Imagine sitting in your office, a restaurant or on a tram and being able pull out your iPhone and browse potential dates, it’s like Marco Polo without the blindfold.

Grindr may be taking away the nuisance of having to go through introductions and small talk, but it’s at the cost of privacy. Anyone with an iPhone, iPad or iPod Touch can download the free application and now see users’ profiles (again, the amount of information/photos is determined by individual users) and pin point their exact location on a map. While we are in the clichéd age of the information superhighway, how much are we willing to sacrifice for these immediate connections? How do we maintain a professional/personal life when the tools and mediums of communication do not reflect that division?

Elisabeth K. Cooke is a JD candidate at the Melbourne Law School

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Victorian Law Reform Commission Releases Recommendations on Privacy Rights

October 14, 2010

By Rebecca Mouy

The VLRC has responded to concerns about increasingly invasive surveillance technologies in public places, recommending a number of changes to the Surveillance Devices Act 1999 and creation of two new statutory causes of action for serious invasions of privacy. Further changes include prohibiting surveillance in toilets and change rooms, and the introduction of a new offence for ‘happy slapping’. Dr Anthony Bendall, standing in for the current Victorian Privacy Commissioner, welcomed recommendations including a broader role for the Commissioner to include regulation of public place surveillance.

The suggested change most likely to affect the media is the introduction of a new statutory cause of action for serious invasions of privacy caused by ‘misuse of private information’ [7.127]-[7.129]. The new statutory cause of action is not limited to public places or use of surveillance device. Thus it potentially has wide-ranging effects on the media. In a submission to the VLRC, ‘Australia’s Right to Know’ argued that media organisations should be exempt from any new cause of action [7.190]. Despite recognising that dissemination of information by the media is of great benefit to the public, the Commission disagreed with this submission. The Commission recommended that the elements (Recommendation 25) of the action should be:

(1)    The defendant misused, by publication or otherwise, information about the plaintiff in respect of which he/she had a reasonable expectation of privacy; and

(2)    A reasonable person would consider the defendant’s misuse of that information highly offensive

In comparison with reports by the ALRC Part K, Recommendation 74-2 and NSWLRC [5.2] where public interest forms part of the cause of action, the Victorian report recommends that the onus should be on the defendant to demonstrate that it was in the public interest to engage in conduct that would otherwise be unlawful [7.180]. In defining ‘public interest’, the Commission stressed that “not all matters of interest to the public are matters of public interest that ought to deprive a person of their right to privacy” [7.187], however “informing the public on a matter of public importance” [7.170]  was considered to be in the public interest. Media organisations would be able to argue consent [7.151]-[7.154] as a defence, and also traditional defamation defences of privilege7.165]-[7.166] and fair comment [7.167]-[7.169].

The report has been tabled in Parliament and is calling for public submissions.

Rebecca Mouy is an LLB candidate at the University of Melbourne.

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Cyber-bullying – Introduction of New Legislative Amendments

July 1, 2010

By Katy Barnett

In a follow-up to my post on cyber-bullying, the Australian government are intending to amend the Sex Discrimination Act 1984 (Cth) in an attempt to deal with the phenomena of cyber-bullying and “sexting”.

1. Current provisions of the Sex Discrimination Act

Presently, s 28F of the Sex Discrimination Act prohibits “sexual harassment” in educational institutions in the following terms:

(1)  It is unlawful for a member of the staff of an educational institution to sexually harass:

(a)  a person who is a student at the institution; or

(b)  a person who is seeking to become a student at the institution.

(2)  It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a)  a person who is an adult student at the institution; or

(b)  a member of the staff of the institution.

(3)  In this section:

“adult student” means a student who has attained the age of 16 years.

“Sexual harassment” is defined by s 28A of the Sex Discrimination Act as follows:

(1)  For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 28F applies only to harassment by persons within the same educational institution as the complainant, and also requires the complainant to be over 16 years of age.

2. Proposed amendments to the Sex Discrimination Act

The Age reports that a variety of amendments are proposed, including a change to the age of persons who can sue for sexual harassment, and an extension of the organisations in which sexual harassment may take place:

The changes…will mean that for the first time students under the age of 16 will be able to resort to the Sex Discrimination Act, provided perpetrators are over the age of 16.

The overhaul will also mean that sexual harassment laws will no longer be limited to staff and students within the same schools but are extended to cover peers or teachers from other institutions who might mingle at combined events such as sporting carnivals and theatrical productions.

I wonder if the amendments will include reference to modern technology for the avoidance of doubt on the matter?

3. Students harassing staff?

The present Act and the proposed amendments do not seem to cover the possibility of students sexually harassing staff.

There has been a recent case in South Africa on this point (hat tip: Obligations Discussion Group): Le Roux & Ors v Dey [2010] ZASCA 41.  The case arose when a 15-year-old student (the first defendant) found a picture of two gay bodybuilders in a compromising position when searching the internet.  He replaced the heads of the bodybuilders with photos of the principal and the vice-principal of his school, and obscured the genitals of the men with a school badge.  The first defendant sent the photo to a friend, who then texted it to various other students, including the second defendant, a 17-year-old student at the school.  The photo was quickly disseminated through the student body.  The second defendant printed out the photo and displayed it to a teacher and other students.  Then the second defendant persuaded the third defendant, another 17-year-old student, to place the photograph on the school notice board.  The photograph was soon discovered by another teacher and removed.

The plaintiff, the vice-principal whose head had been featured in the manipulated picture, brought a claim for sentimental damages for two delicts (or wrongs): the infringement of his dignity (dignitas) and reputation (fama).  The plaintiff appears to have been a devout Christian who suffered acute embarrassment and humiliation as a result of the publication of the doctored photograph.  The North Gauteng High Court held that the defendants were liable for infringement of dignity and reputation, and awarded R45,000 against the defendants.  The defendants appealed.  

On appeal, a majority of the South African Supreme Court of Appeal upheld the claim in respect of the injury to reputation, and upheld the quantum of damages.  The majority found that there was only one relevant cause of action, and the action for injury to reputation encompassed infringement of dignity.  By contrast, in the minority, Griesel AJA found that the conduct amounted to an infringement of the plaintiff’s dignity, not his reputation, but still upheld the amount of the award.

What would occur if something like this happened in an Australian school?  Let us presume that a 17 year old student disseminated sexually explicit photos which were manipulated to depict a teacher in a compromising position.  The provisions of the Sex Discrimination Act as they presently stand would not cover this conduct (which seem only to contemplate harassment by teacher to student), and it does not seem that the amendments will change this. I suspect the teacher would have to rely on defamation. We do not have a tort of injury to dignity, although as discussed in my previous post, there have been obiter suggestions by Maxwell P in Giller v Procopets that Australian law might adopt a tort of intentional infliction of mental suffering, similar to that which exists in the United States.

4. Protection from Harassment Act 1997 (UK)

There has been discussion among the Obligation Discussion Group (Melbourne Law School) as to whether the Protection from Harassment Act 1997 (UK) would cover instances of cyberbullying between students. We do not have an equivalent Act in Australia.  Section 1 of the Act prohibits “harassment”, and s 2 confirms that a breach of s 1 is an offence.  Section 3 gives the person who is the victim of the harassment a civil remedy against the perpetrator.  Section 4 provides that putting people in fear of violence is an offence.

The general consensus seems to be that the Protection from Harassment Act would potentially apply to a case of cyberbullying between students.  ”Harassment” is not actually defined in the Act, although s 1(2) specifies, “the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”  Section 7(2) also provides that harassment includes “alarming the person or causing the person distress.”

In Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 , Lord Nicholls said at [30]:

Where…the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. (emphasis added)

Baroness Hale noted at [66] in the same case:

A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.

Lord Nicholls “oppressive and unacceptable” test was applied and elucidated last year in two cases of the English Court of Appeal.  In Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 the Court of Appeal confirmed that the test was whether the conduct was “oppressive and unacceptable”, and thus worthy of criminal sanction.  It was emphasised that the course of conduct must be grave.  In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288, a case involving workplace bullying, the Court of Appeal again applied the “oppressive and unacceptable” test.  The Court ultimately found that, although harassment would not usually be present in a workplace context, in this case it was present on the facts because of the extraordinary severity of the conduct. Malice was not required to establish harassment, but establishing malice made it easier to establish that the conduct was “oppressive and unacceptable”.

Thus, depending on the nature and severity of the cyberbullying, if conduct was grave, oppressive and unacceptable it may fall under the Act.  It was also noted in the ODG that defamation would be another cause of action available to a UK victim of cyberbullying.  And, as I have noted in my earlier post, a defendant was charged with making threats to kill over Facebook in a schoolyard bullying context.

5. Conclusion — other questions for organisations to consider

When I was in the final years of primary school, there was a student who had been held back because of learning difficulties.  He was somewhat older than his classmates, and had come from a different school.  He used to behave in an inappropriately sexual fashion in class, and sexually harass female students repeatedly.  I’m not sure if the teachers were aware of the extent of the problem, and if they were, I suspect that they didn’t know what to do.  This kid once held me up against the lockers and thrust himself against me, which was pretty scary. After I attempted to kick him and said I’d scream, he left me alone.  The interesting thing was that, in the absence of any appropriate response from the teachers at the school, the other boys policed this kid and used to beat him up for inappropriate behaviour towards girls.  Of course, the boys who beat up the kid used to get in trouble.  I wish I’d been articulate enough at that age to explain to the school administration why they’d done it.

I was also thinking of a school teacher friend of mine who recently started teaching at a new school and found that a large proportion of the male students had a habit of publicly, erm,  “adjusting” or “fiddling” with themselves in class or when in conversation with the teacher.  My friend was taken aback by this behaviour, and went to talk to the school administration after a younger female colleague confessed she felt very uncomfortable around the male students, but he was told that any problems were his, not the students’.

Schools and other organisations (orchestras, sports teams & etc) will have to be careful to police this kind of behaviour.  Obviously the example of the highly sexual primary school student wouldn’t be covered by the amended or present Sex Discrimination Act because the kid was too young, but the second scenario might be caught by the Act if some female students complained about the conduct of a male student and were offended by it.

I guess the question remains as to always question how appropriate it is to police this kind of behaviour with laws.  I’m not a libertarian.  I think it’s appropriate to have some kind of regulation to prevent discrimination and sexual harassment.  Nonetheless, a close inspection of the Sex Discrimination Act worried me. The conduct described in s 28A includes conduct of a sexual nature which offends, humiliates or intimidates. (Cue song: Which one of these things is not like the other things?)

To my mind, offence is very different to humiliation and intimidation.  Humiliation and intimidation seek to belittle the person’s standing as an equal human being in the eyes of the community.  In a Kantian sense, the perpetrator inflicts a moral injury by trying to belittle the other.  By contrast, offense is a very subjective concept.  Some girls may be offended by seeing that a boy had a picture in his locker of a voluptuous semi-naked babe, but the boy never intended to create offence in others, and merely kept the picture in his locker for his own daydreams.  If I were seeking to extend the provisions of the Sex Discrimination Act to cyberbullying and “sexting”, I’d cut the “offence” part, but leave the humiliation and intimidation, because that is the kind of conduct we really want to prevent.

Katy Barnett is a PhD candidate at the Melbourne Law School

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Juggling Facebook and Privacy

June 3, 2010

by Elisabeth K. Cooke

Founded in February 2004, Facebook has quickly become one of the most popular social networking sites, playing host to 400 million users in 75 different languages around the world.  Facebook’s mission is to ‘give people the power to share and make the world more open and connected’. They are certainly well on their way. Even the Supreme Court of the Australian Capital Territory is on board with Facebook, ruling in 2008 that Facebook is a valid protocol to serve notice to defendants.

The concept of social networking sites raises a number of privacy and safety concerns. Recently, Facebook has been in the news for a surprising variety of reasons: police laying charges based on the contents of photos, fugitives being located from their own status updates and young people coming to harms way. The very nature of social networking sites provides for a broad ability to raise all sorts of issues. However, it is how Facebook users establish and maintain privacy that has become of the utmost importance.

Understanding Privacy Settings

Scrutinizing Facebook’s privacy statement is no simple task. The New York Times recently investigated Facebook’s privacy statement, drawing particular attention to the word count. In 2005, Facebook’s privacy statement was at a mere 1,004 words. Five years later it has ballooned to 5,830 words, a growth of over a thousand words a year. The New York Times cleverly points out that Facebook’s policy statement is longer than the United States Constitution. The Australian Constitution, however, could eat Facebook’s privacy statement for breakfast, coming in at approximately 14,000 words. The University of Melbourne’s privacy policy weights in with 1,383 words. The length of the privacy statement alone is daunting, never mind trying to navigate around the 50 different privacy settings with 170 different options.

Talking about Facebook and privacy has quickly become as popular as skinny jeans and the elusive ‘best’ coffee in Melbourne. But what should we actually be worrying about? What are the risks and concerns? As a proud and possibly addicted Facebook user, here are my top three concerns:

  1. Who can access my Facebook profile content and personal information?
  2. Search engine visibility
  3. 3rd party advertisers

Understanding privacy on Facebook is much different than privacy in the offline world. Generally, we assume that we are the gatekeepers that grant others a right to our personal information. Facebook sees things differently. Facebook keeps the gate open as their default setting for privacy. Facebook argues that everyone ‘opts in’ to join Facebook and every time a user posts a status update or photo, they have ‘opted in’ to share that personal information by the mere act of adding it to their account. This means that anyone who joins Facebook (meaning anyone over the age of 13 with a valid email address) has zero privacy until they sort through the 50 different settings with 170 options.

Controlling My Profile

Facebook’s privacy settings are detailed and specific. Most importantly they are designed to empower users to sort through each setting individually in order to protect users privacy. It is essential go through each category to select your own privacy settings.

Personally, I was quick to adjust the ‘Search’ subcategory to control who could search for me either on Facebook or on a search engine (search engines can index anything you make public, I set my profile as completely private). I also took the liberty of ‘blocking’ a few individuals on Facebook who shall remain nameless. Apart from 3rd party advertisers, which I’ll address later on, that took care of the outside world – it was then time to work through my ‘Friends’.

I have found that the most effective and time efficient way to control what different ‘Friends’ can see is by creating ‘friend lists’. Creating lists is relatively easy. On my ‘Home’ page, I selected ‘Friends’ from the right hand column of options. The ‘Friends’ page provided me with a list of all my friends in order of most recent activity. At the top of the ‘Friends’ page is a button marks ‘Create a List’. Once I clicked the list I had the option to create a group of friends separate from all of my other friends.

While I would never want to openly admit that I classify or rank my ‘friends’ – I secretly do. Inner circle friends, family, work colleagues, university colleagues all have their own lists. I have found these lists useful to sending out group messages over Facebook, but most importantly, I can tailor the level of privacy I want to have against the entire list by simply going through my privacy settings and ‘allowing’ or ‘blocking’ them on all settings (who can see photos, wall posts etc). This enables me to have a slightly more manageable and time efficient strategy for protecting my privacy. This is of course not to say that I have a particularly interesting Facebook profile, in fact, I am quite sure that I don’t. However, not all of my friends on Facebook need to see me in my pyjamas on Christmas morning.

3rd Party Advertising

Facebook says they don’t share identity or names – they sell advertising based on demographic and perceived interests. Facebook uses anonymized demographically targeted ads, and “serve ad impressions to users where the word is on there somewhere”. While similar to a key word search on Google, this the word search goes through your entire Facebook profile, including personal messages, wall posts, etc. This translates into advertising getting their audience without getting the personal information.

Since setting my status as ‘engaged’ I have been bombarded with ads full of blushing young women dressed up as cupcakes. At the beginning of the year, I arranged a trip to Sydney and organized to meet friends via Facebook messages. Imagine my surprise when ads for Sydney Opera House tours started popping up on the right hand side of my profile.

Facebook’s business pages currently hosts over 1.5 million small businesses and plan to go up against Google in providing advertising services. The anonymized demographically targeted ads provide businesses with the ability to narrow down their target audience, reaching directly to specific individuals. Facebook goes as far as to provides users with the option to ‘close’ an ad and give feedback on why they chose to close the ad. How helpful.

Facebook’s Statement of Rights and Responsibilities

Facebook’s ‘Statement of Rights and Responsibilities’ provides that they can amend the Statement so long as they provide users with notice by posting the change on the Facebook Site Governance Page and provide users with an opportunity to give comment (Section 13). If there are 7000 or more users who comment on a change, Facebook will provide a voting mechanism for the particular change. While Facebook prides itself on being user friendly – the moral of the story is that changes can happen without users receiving direct notification. This means that users must exercise self-responsibility and frequently check the Facebook Site Governance Page for any updates or changes.

New Additions and applications

Social plug-ins let you see what your friends have liked, commented on or shared on sites across the web. All social plug-ins are extensions of Facebook and are specifically designed so none of your data is shared with the sites on which they appear. For example, last week I was on cnn.com and paused in the middle of the reading an article only to notice a bar at the right hand side of the page informing me that one of my Facebook friends had recently posted a comment on his friend’s Facebook wall about that particular article. I couldn’t log into Facebook fast enough to update my privacy settings.

Facebook is on the cusp of offering location-based services to Facebook users. This service will allow users to see the geographical location of other users at the time they log in. This will certainly take ‘face creeping’ (checking up on or ‘stalking’) someone’s profile to an entirely new level.

Facebook’s Stance

Facebook reported that they will soon ramp up their efforts to provide better guidance to those confused about how to control sharing and maintain privacy. Elliot Schrage, Vice President for Public Policy at Facebook said that ‘anyone interested in these topics should become fans of the About Facebook Page and the Facebook Site Governance Page — two valuable sources of information that already provide regular updates to more than 8 million users’. Users are also welcome to become a fan of ‘Facebook’ and to leave a suggestion at the help center.

While I continue to juggle my paranoia with what has become a mild obsession with Facebook I have found three approaches that I believe protect my privacy: maintain my ‘Friend lists’, checking changes to privacy settings frequently and using what my mother would call using my ‘not-so-common common sense’ about what I post about myself on the internet. But after all the work to maintain my privacy and stay ahead of any updates or changes, I can’t help but ask myself, is it worth the risk?

Elisabeth K. Cooke is a JD candidate at the Melbourne Law School

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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

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