Australia: Sex, Drugs and Breach of Confidence

• Australian law attempts to protect privacy through a variety of mechanisms, including defamation law and breach of confidence.

• The UK view of breach of confidence is that in certain circumstances the law recognises that the individual is owed a right to privacy by the world at large.

The British media was in a frenzy earlier this year after a supermodel and a politician each took the Mirror to court alleging that stories written about them constituted a breach of their privacy. The Mirror won one and lost one, but it seems that publishing celebrity gossip will not usually be actionable as a breach of confidence.

In a high-profile case, supermodel Naomi Campbell objected to the Mirror publishing photographs of her leaving a Narcotics Anonymous meeting under the headline "Naomi: I am a drug addict". In spite of the headline, the first of these articles was fairly sympathetic about her drug problem. In subsequent articles the Mirror disdained what it saw as her hypocritical pleas for privacy after she had courted publicity for many years (calling her "pathetic" and a "chocolate soldier"). On 6 May 2004, the House of Lords awarded Campbell damages, and the case was trumpeted as an erosion of freedom of speech (Campbell v MGN Limited [2004] UKHL 22).

On 30 May, under the headline, "My 10-year affair with Lord Sebastian Coe", the Sunday Mirror printed a salacious tell-all interview with a former lover of the Tory peer and Olympic gold medallist, alleging she had been paid to 'terminate their secret lovechild'. Coe's application for an injunction was refused, and the story went to press [1].

As in Australia, there is no cause of action for invasion of privacy in the UK. Instead breach of confidence has been sufficiently expanded to "[shake] off the limiting constraint of the need for an initial confidential relationship" [Lord Nicholls in Campbell] - in certain circumstances, that is, the law recognises that the individual is owed a right to privacy by the world at large.

The issue for the courts has been how to characterise information as confidential where there is no pre-existing confidential relationship such as doctor/patient or priest/parishioner. Naomi Campbell was exiting the meeting on Kings Road, Chelsea, clearly visible to anyone who passed. She had no existing relationship with anyone except the unknown person who had tipped off the paparazzi. But she was "drably dressed" and "deliberately low key" to avoid notice, and the photograph was obtained surreptitiously, assisted by covert methods. If a photograph needs to be taken through a telephoto lens, it is not much of a leap to say that the photographer knew that her or she was privy to confidential information.

In Anglo-Australian law, the "useful practical test of what is private" enunciated by the Chief Justice of the High Court in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63 has been widely adopted; namely, whether the "disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities". The House of Lords in Campbell was careful to point out that the test asks the reasonable person if he or she would have been shocked by the act of revelation had it been about them.

Ultimately, both the Campbell and Coe cases were decided on fairly narrow grounds. Coe was merely seeking an interlocutory injunction to prevent publication; the decision was not a finding on the merits at a final hearing. In Campbell, it was agreed at trial, and remained common ground, that the Mirror was entitled to print the bald fact that Campbell was a drug addict, and also that she was receiving treatment for her addiction, because she had for many years publicly condemned drug use in the modelling industry. It was a matter of public interest that the record be set straight. However the House of Lords decided that group therapy for addiction was analogous to medical treatment and was therefore inherently private. Only under the most extreme circumstances would the public interest prevail over privacy in relation to information of that type.

Balancing the individual's right to privacy with the public interest

If the information can fairly be described as having been obtained in circumstances in which there was a reasonable expectation of confidentiality, the court then undertakes a subjective "balancing" approach in order to reconcile the individual's right to privacy with the public's right to freedom of expression. In the United Kingdom this balancing test is now governed by European Human Rights Law, which has no equivalent in Australia. Yet the prevailing impression given by the House of Lords in Campbell is that this test is "familiar" to common law, and that there is no impetus for the court to weigh one more highly than the other [2].

What exactly is the public interest at stake in a tabloid story about a super-model or a torrid love affair? As Lord Hope conceded in the Campbell case, "the right of the public to receive information about the details of her treatment was of a much lower order than the undoubted right to know that she was misleading the public when she said that she did not take drugs".

The public interest is not to be equated with everything that the members of the public happen to find interesting. On the contrary, in Campbell, as Baroness Hale pointed out, even the most 'trivial' of stories serve the public interest to some degree - not least because "we need newspapers to sell in order to ensure that we still have newspapers at all". Furthermore, her Ladyship pointed out that the reader has a right to "be interested to see how [Naomi] looks if and when she pops out to the shops for a bottle of milk"- as tabloid readers and publishers would no doubt agree.

Lord Coe maintained that he had a right to privacy on the grounds that the revelations would be a gross invasion of the privacy of his four children, and that he had not sought publicity in the way a celebrity like Naomi Campbell might. He felt that by choosing not to exploit his private life in a public manner he had precluded others from choosing to do it for him.

However, Justice Fulford felt that the balance of interest in the case lay with Coe's ex-lover, Landers, and the Sunday Mirror. As a public figure recently in the news because of his appointment to the Olympic Committee, and as a holder of public office, Coe was prima facie of interest to the public. Importantly, the information had to a certain extent lost its quality of privacy - it had 'entered the public domain' when rumours of the relationship surfaced in the press in 1995.

Furthermore, Landers had a right to free speech herself which would have been infringed by the granting of the injunction. The media have trumpeted this as a right to "kiss and sell". But this is not to say that ex-lovers will be able to divulge all in the press. Generally, in Australian law, sex is considered a private act, notwithstanding that there is (one hopes) another person involved.

Perhaps most salient to the case was the fact that the affair was extra-marital, and presumably an object of public condemnation. Media reports particularly focused on the abortion of Landers' and Coe's foetus while Coe's wife was pregnant with his third child. General consensus was that Coe's actions had been "despicable" (New Zealand Herald), and his platform of Conservative 'decency' had "the stench of hypocrisy" about it (Independent).

Australian law attempts to protect privacy through a variety of mechanisms, including defamation law and breach of confidence. As yet, there is no tort of privacy under Australian law although the seeds for the development of such a tort may have been sown.

In Lenah, Justices Gummow and Hayne, with whom Justice Gaudron agreed, left open that possibility of a tort of privacy and Justice Callinan indicated that he was "tentatively" amenable to it. However, Lenah was not decided on grounds of privacy.

In a 2003 case, Grosse v Purvis [2003] QDC 151, Judge Skoien of the District Court of Queensland handed down the first Australian decision in favour of an independent tort of privacy.

In Kalaba v Commonwealth [2004] FCA 763, Justice Heerey of the Federal Court held that the "weight of authority" is against a tort of privacy. However he also made it clear that he would not have dismissed the claim in that case if there was even a "faintly arguable case that there had been an infringement of privacy of a kind entertained elsewhere in the common law world, and particularly by American Courts". Justice Heerey noted that protection for privacy has been afforded in America in four categories of cases:

(i) Intrusion upon the plaintiff's seclusion or solitude or into his private affairs;

(ii) Public disclosure of embarrassing private facts about the plaintiff;

(iii) Publicity which places the plaintiff in a false light in the public eye; and

(iv) Appropriation for the defendant's advantage of the plaintiff's name or likeness.

Whether, and to what extent, Australia may develop a law of privacy along these lines remains to be seen.

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.