All this fuss about Barry Spurr's dodgy emails
raises some seriously interesting legal questions.
Let's be clear, Barry Spurr's choice of language
suggests that he's not the ideal candidate to review our
kids' English curriculum. If you're not maligned by his
emails then you're probably in the minority. But that's not
what we're talking about here.
Spurr is seeking injunctions against the publisher of his
emails, news website New Matilda. He wants them to hand over all
the email booty, take down its publications to date and stop any
What we're interested in is whether he can do all this. If
he wins, there could be big ramifications for publishers. But as
the law currently stands, we reckon he'll struggle. Here's
The Privacy Act isn't likely to help Spurr. The
New Matilda is probably exempt as either a small business or a
media organisation, or both. And in any case the material in his
emails is unlikely to comprise 'personal information' as
defined in the Act.
Breach of confidence is perhaps Spurr's best argument, but
even then it's a stretch. He'll have to prove the emails
had the necessary quality of confidence, relying on cases about sex
tapes to support his claim. Spurr's emails were personal, but
probably not confidential. They're not marked as such and there
would be nothing to stop the recipient disclosing them. They were
also sent from his work email address, not a private address.
Invasion of privacy is the last possible basis for Spurr's
injunction. Except that no superior court in Australia has
recognised that such a tort exists. If it does, it will undoubtedly
include a balancing of the right to individual privacy against the
public interest in disclosure. There is a genuine basis for public
interest in Spurr'sopinions on race and gender. That's
going to stymie Spurr even if he can convince the court to
recognise the cause of action.
Spurr dropped his initial claim to get hold of New Matilda's
source. Lucky for the source, as they could face criminal
prosecution for their actions. Freya Newman, the girl who blew the
whistle on the secret design school scholarship granted to Tony
Abbott's daughter, is facing sentencing in a criminal action
for unauthorised access to a student database. New Matilda's
source, if identified, could face a similar prosecution.
None of this is going to undo the damage to Spurr. If you ask us
it seems like Spurr is flogging a dead horse. Or the horse has
bolted. Maybe he's flogging a bolted horse.
The case is set to be heard in December. We'll keep you
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Those types of personal disclosure may still be permitted under the Privacy Act as long as your house is in order.
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