Australia: Royal Invasions: A Forum to Consider Australia’s Laws Relating to Breaches of Privacy

The Royal Family are rarely far from the front end of a news bulletin and 2012 has proved no exception. It was not all that long ago that the publication of compromising photos of a 'festive' Prince Harry in Las Vegas raised for discussion the privacy rights of individuals, involving members of the Royal Family.

Since then, two recent incidents involving the Duchess of Cambridge, Kate Middleton, have caused an even greater spotlight to be shone on privacy rights, including in Australia.

In the case of the (mostly topless) images of the Duchess taken by a paparazzo in France, legal proceedings in the French courts have illustrated that French law is among the most protective of an individual's right to privacy. These protections are entrenched in France's Civil Code and are routinely enforced by the courts against paparazzi and publishers alike.

Now, the fallout from the recent scandal surrounding 2Day FM's broadcast of a prank call made to the King Edward VII Hospital has drawn further significant attention to the existing regulations concern privacy and the media, this time in Australia. Coincidentally, this has come at a time when Australia is debating the future of its privacy laws. Earlier this month, the Communications Law Centre at UTS hosted a symposium entitled "Privacy and the 21st Century", in which Lord Justice Leveson and several other high profile representatives from Australian politics, the media and academia explored the future of privacy regulation and the introduction of a tort of invasion of privacy.

In this article, we:

• explore the proceedings involving the Duke and Duchess as a case study to consider the state of Australia's existing laws in relation to privacy as they apply to members of the media, and
• briefly consider some of the legal issues around the prank call scandal.

The Duke and Duchess v Mondadori: A French Perspective

On 14 September 2012, the French magazine "Closer", owned by the Italian media company Mondadori, published 14 photographs of the Duke and Duchess taken whilst the couple was vacationing at a private chateau in Provence. Some of the controversial photos depict the Duchess sans bikini top and, in one instance, with her suit bottom partially lowered to apply sunscreen. It is understood that these photographs were taken with long lenses which would have enabled the photographer (whose identity, somewhat ironically, remains shrouded in secrecy) to capture the images from a public road or footpath approximately a kilometre away.

Legal Action Taken by the Royals

The Duke and Duchess commenced civil proceedings against Mondadori in the Tribunal de Grande Instance de Nanterre for breach of privacy and a cause of action akin to a breach of copyright in one's image.

As breach of privacy, the Duke and Duchess sought to invoke Article 9 of the Civil Code in France, which essentially provides that "everyone has the right to respect for his or her private life". Whilst "private life" is not an expression that is defined, the courts in France have interpreted this to include matters such as a person's romantic life, friendships, family circumstances, political opinions, religious affiliation and state of health.

As to breach of copyright in one's image, the courts in France have recognised an individual's copyright over his or her own image through their interpretation of Article 9. In 2004, the Supreme Court of France (Cour de Cassation) held that "everyone has an absolute and exclusive right to his own image and can forbid its reproduction or its utilisation without authorisation"¹. Notably, the courts in France have held that protection over copyright in one's image effectively goes beyond the scope of right to privacy in that it can apply to images taken in a public place without the person's authorisation².

In addition to the civil proceedings brought by the Duke and Duchess against Mondadori, the royal couple have filed a criminal complaint against "X" – the unknown photographer – and 'Closer' magazine. These complaints remain the subject of an investigation by French police.

The relevant criminal provisions relating to breaches of privacy can be found in Articles 226-1 to 226-9 of the French Penal Code which make it an offence, intentionally and by means of any process whatsoever, to infringe another person's privacy by taking, recording or transmitting, without consent, the picture of the person whilst in a private place. The courts in France have interpreted "a private place" to mean a place that is not open to others, whether on a temporary or permanent basis, without the permission of the person who occupies it. Liability extends to publishers of photographs (i.e. magazines, newspapers, etc) by making it an offence to make use of recordings and documents obtained by way of conduct which falls within Article 226-1, in circumstances where the publisher has knowingly preserved the material, intentionally brought it to the attention of a third party or used it publicly. The publisher must satisfy itself that consent from the subject of the photograph was obtained prior to acquiring the photographs.

The Courts' Findings to Date

In the civil proceedings, Mondadori sought to defend its publication of the pictures broadly on the basis of editorial freedom and freedom of expression.

The Court rejected Mondadori's defences having regard to the following matters:

• the Duke and Duchess were on private property when the photographs were taken;
• the photographs were capturing an intimate moment; and
• the photographs were taken and published without the Duke and Duchess's knowledge or authorisation.

It held that "[t]hese snapshots which showed the intimacy of a couple, partially naked on the terrace of a private home, surrounded by a park several hundred meters from a public road, and being able to legitimately assume that they are protected from passers-by, are by nature particularly intrusive"...[They] were thus subjected to this brutal display the moment the cover appeared". This can, of course, be contrasted with situations in which the Duke and Duchess are in public and are acting in the course of their official duties as members of the royal family.

What Would be the Legal Position in Australia?

While it has been argued by some that there is a gulf between the legal remedies available under French law and those available in Australia, paparazzi and publishers of such photos in Australia would encounter largely similar legal risks to those faced by their counterparts in France.

Assuming, for instance, that all of the facts are the same, save that the photographs were taken on some piece of private property in Australia and were published by a local magazine, various possible causes of action arise for consideration.

Depending upon the State or Territory in which the conduct took place, the photographer and/or the local magazine could face criminal prosecution, whilst there may be scope to rely upon the causes of action of breach of confidence and trespass as bases for suing both parties, even in the absence of a recognised tort of invasion of privacy.

The Common Law Position

Notwithstanding the obiter of the minority the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Australian courts have remained somewhat reticent to recognise a tort of invasion of privacy. With the exception of two decisions of first instance courts (the District Court of Queensland in the case of Grosse v Purvis³ and the County Court of Victoria in the case of Doe v Australian Broadcasting Corporation⁴), the courts have not expressly recognised such a cause of action.

However, there has been some suggestion that the existing action for breach of confidence is capable of being used to enforce breaches of privacy. The decision of the Supreme Court of Victoria in Giller v Procopets⁵ considered this issue and accepted that the notion of confidential information "does extend to information concerning the personal affairs and private life of a plaintiff"⁶. Whilst the Courts are yet to determine whether the same reasoning would apply to use of confidential information by third parties, such as photographers and publishers, there is nothing in that case which would prevent such a finding.

Further, had the photographer taken the images on private property, the Royal couple would be entitled to restrain their publication and sue for damages on the grounds of the tort of trespass.

The Position Under Statute

Presently, Australian Parliaments have not introduced a statutory cause of action for invasion of privacy.
That said, the ALRC recommended the introduction of a statutory cause of action in respect of serious invasions of privacy and that this cause of action should apply to "acts and practices in the course of journalism"⁷. Moreover, the New South Wales⁸ and Victorian Law Reform Commissions⁹ have also recommended the introduction of similar causes of action¹⁰.

In September 2011, the Federal Government released a discussion paper on this very topic, which has been the subject of numerous submissions from various interest groups. We understand that the Federal Government was to give consideration to this matter in October 2012, however no announcement has yet been made on whether a statutory cause of action will be adopted.

The recent privacy symposium, in which Lord Justice Leveson presented his views regarding a tort of privacy, provided a convenient forum for representatives from both sides of politics and the media industry to discuss their attitudes on this very issue. Greens Senator Scott Ludlam made clear that he was on the side of introducing a statutory cause of action for invasions of privacy, whilst Shadow Minister for Communication and Broadband, Malcolm Turnbull appeared resistant to such regulation.

Criminal Sanctions

Had the events occurred in Australia, there are also a range of criminal offences provisions at State/Territory level which might apply to the photographer and the local magazine.

In relation to the photographer:

• In Queensland, the conduct by the photographer may constitute an offence under the Criminal Code 1899 on the basis that it is a visual recording obtained in breach of privacy.
• In Victoria, Western Australia and the Northern Territory the respective Surveillance Devices Acts make it an offence for a person to "knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity" to which the person is not a party, without the express or implied consent of each party to the activity.
• In Victoria, the Summary Offences Act 1966 makes it an offence to capture another person's genital or anal region in circumstances in which "it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured". (This may not apply to 'topless' photographs.)
• In South Australia, the Summary Offences (Filming Offences) Amendment Bill 2012 was recently introduced into Parliament which, if passed, will make it an offence for photographers to capture invasive or indecent images without consent.

In relation to the local magazine:

• Communication of a record of a private activity captured by a surveillance device is also an offence in the states referred to above. Distributing the images could fall within the offences of the Queensland Criminal Code. These offences carry maximum penalties of 2 years imprisonment.
• The Victorian Summary Offences Act extends the liability to publishers of such photographs: "A person who visually captures or has visually captured an image of another person's genital or anal region must not intentionally distribute that image. This offence carries a penalty of 2 years imprisonment.
• In South Australia, the Summary Offences (Filming Offences) Amendment Bill 2012, if passed, would also have the effect of prohibiting the distribution of such images captured by photographers.

2DayFM Prank Call

The fallout in the past weeks from the prank call by 2Day FM DJ's Mel Greig and Michael Christian to King Edward VII Hospital has been used by some to suggest that Australia's existing laws fail adequately to protect privacy rights. However, in addition to the matters raised above, examined more closely, existing laws in Australia can be shown to provide a firm basis for redressing conduct which is in the nature of a privacy breach, particularly when the media is involved.

In the case of 2Day FM, the radio licensee is obliged to observe the Commercial Radio Codes of Practice which contain relevant provisions regarding recorded calls and matters of privacy. Clause 6.1 provides:

The Codes of Practice also include provisions which apply to news and current affairs programs specifically regarding the use of material relating to a person's personal or private affairs, or which invades an individual's privacy. Clause 2.1 provides:

A similarly drafted provision applies to preparation and presentation of current affairs programs¹¹.

Such recordings are also restricted by the Surveillance Devices Act in New South Wales and its equivalent legislation in most other states, which prohibits recording telephone conversations without the consent of the parties involved if the communication was "private" and not one which the parties reasonably expected to be overheard.

Australian media regulator, ACMA, has recently announced that it will investigate the conduct of Southern Cross Austereo, the owner of the radio station, under the Commercial Radio Codes of Practice and the station's licence conditions imposed by the Broadcasting Services Act 1992 (Cth). Any action that ACMA may take (i.e. suspending or revoking its licence, imposing conditions and other measures) would only be in respect of the licensee and not the individuals involved (i.e. the DJs) but could nevertheless impose further conditions of the licensee and effect changes in the way similar calls are handled in the future.

The assistance of Nicholas Rozenberg, Solicitor and Pauline Penneret, French Law Clerk, of Addisons in the preparation of this article is noted and greatly appreciated.

Footnotes

¹ Cass. Civ.2ème, 30 June 2004, n°02-19.599. It is also the position of the European Court of Human Rights that reminds that "the private life notion includes some elements linked to someone's identity as his name or his image".
² Cass. Civ.1ère, 12 December 2000, n°98-21.311.
³ Grosse v Purvis [2003] QDC 151.
⁴ Doe v Australian Broadcasting Corporation [2007] VCC 281. We note that the decision was the subject of an appeal, however the matter was settled out of court in 2008 and so the appeal was never heard.
⁵ [2004] VSC 113. The defendant had filmed a number of sexual encounters between the parties (some of which were filmed by consent) and subsequently distributed the footage to others.
⁶ Giller v Procopets [2004] VSC 113, at [151] per Gillard J.
⁷ Australian Law Reform Commission, Report 108, 'For Your Information: Australian Privacy Law and Practice', 2008, Chapter 74, Recommendations 74-1 to 74-7.
⁸ NSW Law Reform Commission, Report 120, 'Invasion of Privacy', 2009.
⁹ Victorian Law Reform Commission, Final Report 18, 'Surveillance in Public Places', 2010, Chapter 7.
¹⁰ The NSW Law Reform Commission drafted a bill, the "Civil Liability Amendment (Privacy) Bill 2009", with the following objects:

1. to recognise that it is important to protect the privacy of individuals, but that the interest of individuals in their own privacy must be balanced against other important interests (including the interest of the public in being informed about matters of public concern), and
2. to create a statutory cause of action for the invasion of an individual's privacy, and
3. to provide for a number of different remedies to enable a court to redress any such invasion of privacy.

The Victorian Law Reform Commission recommended in August 2010 that two statutory causes of action be created, for "serious invasion of privacy [firstly] by misuse of private information [and secondly] by intrusion upon seclusion".
¹¹ See clause 2.3 of the Commercial Radio Codes of Practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.