A privacy law amendment proposed by the Australian Law Reform Commission is likely to stop media defendants being able to use public interest as a defence for serious invasions of privacy.
The ALRC has again entered the privacy debate, releasing several draft proposals in a discussion paper titled Serious Invasions of Privacy in the Digital Era.
Principal among the proposals is a new statutory cause of action for serious invasions of privacy which clearly targets the media.
ALRC Inquiry Commissioner, Professor Barbara McDonald, acknowledges the prospect of a new privacy law is a "concern" for the media but says the media is "not necessarily served well by uncertainty and inconsistency in the existing law".
'A NEW TORT IN A NEW COMMONWEALTH ACT'
Like a tightrope artist on a highwire, the proposed statutory cause of action must strike the right balance between competing rights and desires - privacy against freedom of expression and the right to open justice, as well as the need for the law to provide certain and consistent outcomes while also adapting to a changing technological landscape.
There are five elements to the proposal, all of which must be satisfied:
- There must be an intrusion into the plaintiff's seclusion or private affairs (including by unlawful surveillance), or the misuse or disclosure of private information (whether true or not);
- The invasion of privacy must be intentional or reckless (the fault element);
- There must be a reasonable expectation of privacy;
- The invasion of privacy must be serious. For example it must be 'highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff'; and
- The court must be satisfied that the plaintiff's privacy interests outweigh the defendant's freedom of expression rights and any broader public interest.
The ALRC is of the view that a plaintiff should only be able to take action when the court is satisfied that the plaintiff's privacy interests outweigh freedom of expression or broader public interest rights. This view has been widely criticised and in effect puts the cart before the horse.
As presently worded, the fifth element is likely to deprive defendants of the right to argue a public interest defence. The proposal to have the court consider freedom of speech, the media and other public interests upfront will also encourage Australian courts to follow the UK lead that has seen courts become increasingly sympathetic to a person's privacy rights.
The new cause of action does allow several defences. One of these offers a safe harbour scheme to protect internet intermediaries from being liable for the actions of their service users who innocently disseminate material that invades privacy.
A proposed allowance for the recovery of emotional distress damages reflects the ALRC's belief that embarrassment and humiliation can cause significant harm even though that harm may not be physical or financial.
If the Government does not enact the proposed statutory cause of action, the ALRC recommends new legislation be introduced to enhance the law governing breach of confidence and enable the courts to award compensation for emotional distress.
OTHER IMPORTANT REFORMS - UNIFORM SURVEILLANCE LAWS
The ALRC acknowledges the considerable body of law currently governing surveillance devices and work place surveillance. It also points to grave legal inconsistencies in these laws including the types of devices regulated and the offences, defences and exceptions available. These inconsistencies reduce individuals' privacy protection and create uncertainty in organisations.
For example, it is currently illegal in New South Wales to record your conversation without the consent of all participants, but the same conduct is perfectly legal in Victoria.
The ALRC's proposed compromise is a new defence of "responsible journalism" that protects freedom of speech and allows journalists to investigate important matters of public concern, like corruption, without breaking the law every time they record a private conversation.
The ALRC recommends new uniform surveillance laws that include:
- a technology neutral definition of 'surveillance device';
- an offence proscribing the surveillance or recording of private conversations or activities without the consent of the participants; and
- a provision that a court may make orders to compensate, or otherwise provide remedial relief to, a victim of unlawful surveillance.
The proposed statutory cause of action arguably emphasises the right to privacy at the expense of freedom of expression and open justice.
In saying that, the proposed fault element of the new law, coupled with the requirement that the invasion of privacy must be 'serious', is likely to dissuade plaintiffs from making unmeritorious or vexatious claims.
In our view the wording of the proposed statutory cause of action goes too far and needs to better balance a defendant's public interest considerations with a plaintiff's privacy rights. Consideration should be given to shifting the onus to prove public interest to defendants to ensure that adequate consideration is given to freedom of expression and open justice.
Submissions to the ALRC in response to the discussion paper are due by 12 May 2014. The ALRC intends to provide its final report to the Attorney General by the end of June 2014.
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