Australian Press Council submission to the Australian Law Reform Commission in response to its Discussion Paper 72, Review of Australian Privacy Law

7 December 2007

Executive Summary

The Australian Press Council urges the Australian Law Reform Commission to recommend the introduction of a statutory protection for freedom of speech in order to ensure that increases in privacy protection do not erode freedom of speech in Australia.

The Press Council regards a statutory cause of action for breach of privacy as unnecessary and, in the absence of a guarantee of free speech, a potential threat to the freedom of the press to report, and comment, on matters of public interest and concern. If, despite the undesirability of so doing, a recommendation for introducing a statutory cause of action is included in the final ALRC report the Press Council urges explicit recognition that the proposed scope of the cause of action be precise and limited, and that the proposed defences appropriately expanded. The discussion paper proposed undesirable scope for judicial activism and personal opinion.

The Press Council emphasises the importance of the media exemption in the Privacy Act in ensuring the freedom of the Australian media to perform their role of keeping the public informed on matters of public interest and concern. For this reason, there should be no narrowing of the exemption. Additionally, the Press Council argues that a definition of journalism in the Act is unnecessary and the definition proposed is so narrow as to exclude a good deal of modern journalistic activity.

1. Introduction

To the extent that all parties accept that both protection of personal privacy and the freedom of expression are important rights, the media are in agreement with the Law Reform Commission and with other stakeholders. The media, like other stakeholders, believe that these important principles must be carefully balanced. However, the Australian Press Council is concerned that the current trend towards increasing protection of privacy rights, at the apparent expense of any existing freedom of communication, threatens to skew the balance in favour of privacy at the expense of free speech. This trend is often demonstrated by a tendency to give emphasis to demands for increased privacy protection, while failing to recognise the importance of introducing any statutory protection for freedom of expression. In the view of the Press Council, these two rights cannot be considered in isolation, but must be regarded as unavoidably interdependent. To give an increasing emphasis to the protection of personal privacy without at the same time giving equal protection to freedom of speech will have the consequence of eroding a right seen as essential in any liberal democratic country.

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2. Protecting free speech

In arguments advocating increased protection for personal privacy protection in Australia, reference is frequently made to Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which requires that signatories protect the privacy of their citizens. Similarly, such arguments often cite various countries in which a cause of action for breach of personal privacy is available. Discussion Paper 72 makes such references and cites such comparisons.

But Article 17 of the ICCPR should not be studied without reference to the rest of the document, especially to Article 19, which requires protection for freedom of expression. Those countries where a cause of action is available for breach of privacy generally have either a constitutional or a statutory protection for freedom of speech. The United States has the First Amendment to its Constitution; New Zealand has the Bill of Rights Act 1990; the UK (and Europe) has Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and Canada has the Charter of Human Rights and Freedoms 1982.

At present, Australia has no protection for freedom of speech, apart from the High Court's finding, in Lange, of an implied constitutional guarantee of freedom of political communication.

It is the view of the Australian Press Council that it would not be appropriate to give effect to Article 17 of the ICCPR without, at the same time, also giving effect to Article 19. The introduction of a statutory cause of action for breach of privacy without at the same time also introducing a statutory protection for freedom of speech would destroy the delicate balance between privacy and free speech, emphasising the personal right to privacy at the expense of public rights of free expression and access to information. The Press Council urges the ALRC to recommend that a statutory protection of free speech be introduced as an essential concomitant of any mechanism intended to increase the protection of personal privacy.

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3. A Statutory Cause of Action

3.1 A statutory cause of action is not necessary

The Australian Press Council strongly opposes the introduction of a statutory cause of action for breach of privacy. The Press Council has carefully considered the arguments presented in favour of a cause of action, in both the ALRC and the NSW Law Reform Commission (NSWLRC) papers, and finds them unpersuasive. A statutory cause of action is not necessary, either for the protection of personal privacy or to facilitate actions seeking compensation. Personal privacy in Australia is already adequately protected by an extensive range of Commonwealth and state legislation, in addition to regulatory and self-regulatory mechanisms governing the media.

Where compensation is sought in respect of loss resulting from a breach of privacy, plaintiffs may commence action in the courts via a number of existing causes of action (including trespass, breach of statutory duty, copyright, breach of confidence and defamation). Where such causes of action do not address the plaintiff's particular situation the courts have scope to apply the principles first elucidated in by the High Court in Lenah Game Meats and since employed in both Grosse v Purvis and Doe v ABC to find that a breach of privacy has occurred that may warrant an award of damages or some other remedy.

If, notwithstanding the arguments against such a statutory cause a cause of action, the ALRC finds it necessary to recommend its introduction, the Press Council would argue that in several respects, there needs to be a review of the scope, defences and remedies of the proposed cause of action as outlined in Discussion Paper 72.

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3.2 The scope of the cause of action being proposed is too broad

In its submission to the NSWLRC the Press Council expressed concern about the breadth of the scope of the proposed cause of action. In particular, it noted that the suggestion that such a cause of action extend to encompass "placing an individual in a false light" or "attacking a person's honour and reputation" would undermine recent reforms to defamation law. Similarly, the Press Council noted that unauthorised appropriation of a person's likeness is more appropriately dealt with as a matter of intellectual property. The Press Council notes that the ALRC made observations consistent with the Press Council's views on these questions. However, the formulation of the cause of action proposed in Discussion Paper 72 does not absolutely exclude such matters from the scope of privacy actions. Indeed, the ALRC's proposal states that any list of invasions of privacy that would fall within the scope of the action should be "non-exhaustive", implying that the scope of the action can be expanded at the discretion of the court.

The Press Council is of the view that any list which sets down examples of actionable breaches of privacy, if it is to be included in legislation, should be exhaustive. The Council also believes that the notions of "false light", damage to reputation and appropriation of likeness should be specifically excluded from the scope of the cause of action.

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3.3 Proof of damage

The ALRC proposes that "the action [for breach of privacy] is actionable without proof of damage". The Press Council is of the view that it would not be appropriate to allow a plaintiff to bring an action seeking compensation where that plaintiff is unable to adduce evidence of having suffered either injury or economic loss. If the aim of the action is to prevent publication in anticipation of a possible breach of privacy it would be more appropriate to encourage negotiation or mediation between parties. To facilitate the bringing of actions by plaintiffs who cannot demonstrate damage would be to encourage speculative actions in instances where only trivial breaches have occurred.

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3.4 The Range of Defences should be expanded

In contrast to the proposal to include a non-exhaustive list of the categories of invasion of privacy, the ALRC proposes that the range of defences available against action for breach of privacy should be listed definitively. The discussion paper proposes only four possible defences, of which only two would be practically available to media organisations seeking to defend an action for invasion of privacy.

It seems incongruent to confine the range of available defences while simultaneously facilitating the growth of the law of privacy into areas not currently anticipated. If there are sound policy reasons for allowing for the evolution of the cause of action for breach of privacy into new situations, provision should also be made for the recognition of new defences in response to such actions.

While it is appropriate that a "public interest" defence should be available, and that this should be supplemented by a "privilege" defence, these two defences alone do not seem adequate to ensure that media organisations do not suffer excessive erosion of free speech. Any "definitive" list should include a wider range of possible defences. Additional defences could include the following:

1. Where the plaintiff has consented to the intrusion of his or her privacy, whether such consent is implied or expressly given. Consent may be inferred by the plaintiff agreeing to pose for a photograph, giving his or her name to a reporter, acting in a public place, contacting or approaching a journalist or newspaper, or participating in public activities such as sporting events or public meetings. Consent might also be inferred from the conduct of the plaintiff, such as where celebrities have courted the media in order to exploit publicity to promote their careers.
    
2. Where information disclosed was already in the public domain at the time of the alleged breach. Obviously, if information or images have already been published in the media, republication cannot be realistically considered to be a breach of privacy (although it may breach the plaintiff's copyright). Similarly, if information is widely known within the community, it should not be considered to be a breach of privacy to report it.
    
3. Where a plaintiff's privacy has been breached only incidentally. Where the plaintiff is not the intended subject of an image but appears within the frame when another individual is being photographed, no right of action should be considered to arise for a breach of the plaintiff's privacy. This situation is particularly likely to arise in relation to images of crowds.
    
4. Where defendants neither knew nor reasonably should have known that privacy would be breached by their actions, such defendants should not bear any liability for breach of privacy.
    
5. Where disclosure or publication is made for the purpose of rebutting an untruth on behalf of the plaintiff, that disclosure should be not regarded as giving rise to a cause of action for breach of privacy.
    
6. Where a journalist or publisher has given a fair report of court proceedings that report should be exempt from any privacy legislation. For the purposes of privacy rights, once information has been tendered in open court or "read onto the record", it should be regarded as being in the public domain, unless a suppression order is in place. This approach is consistent with the notion of open justice upon which the common law is based. Similarly a fair report of the proceedings of Parliament, or any similar body, should also be regarded as exempt.

In addition to these exemptions and defences, there is a further circumstance wherein intrusion into the plaintiff's privacy should be treated leniently. Where the matter concerns public figures, who are prominent in the community, and in the media, such individuals should reasonably expect that there will be media interest in their public activities. While there exist professional standards placed on the conduct of the media with regard to such public figures, the media should be able to report on the personal activities of public figures, where such activities impinge on their public activities. With respect to the reporting on the conduct of public figures, there is a need to strike a balance between the individual's right to privacy and the right of the media to inform the public. The Press Council is of the view that the best way to achieve this balance is by way of voluntary codes of conduct which are overseen by industry bodies and professional organisations. The Press Council and the Media Entertainment and Arts Alliance already perform the function of overseeing the professional conduct of publishers and journalists and the Press Council's member organisations, as well as a large number of other print and on-line publishers, subscribe to the Council's Privacy Standards for the Print Media.

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3.5 Remedies are unworkable

The remedies proposed in cases of privacy intrusion are impractical. In particular, the proposal to empower courts to order an account of profits as a remedy for breach of personal privacy is unworkable. Where the defendant in a Privacy Action is a publisher or other media organisation, it would be impossible to estimate the quantum of profits that might be derived from the alleged privacy intrusion. This is due to the revenue structures that are peculiar to media organisations, which would make it impossible to ascertain what proportion of income might be attributable to the publication of specific material.

The Press Council strongly opposes the issuing of injunctions to prevent publication. While the intent of providing for such injunctions may be the goal of protecting personal privacy, such injunctions would inevitably be added to the arsenal of mechanisms employed to implement "stop" or "SLAPP writs" ("SLAPP stands for Strategic Lawsuits Against Public Participation, and it refers to those actions, usually for defamation or some form of damages recover, designed to silence ordinary citizens who dare to criticise the schemes and dealings of the rich and powerful", Terry Lane, The National Interest, ABC Radio National, 16 October 2005) and exploited as a tool with which to obstruct free speech. Utilised in this way, injunctions to prevent or delay publication impact not only upon the media but also effect groups of concerned citizens who seek to expose issues that have the potential to significantly affect the community. Such injunctions risk distorting or obstructing democratic processes and preventing scrutiny and accountability of developers, influential business people and public office holders. It should also be noted that the process of seeking an injunction through the court will involve exposure of the very material that it is sought to keep private. Plaintiffs who are genuinely seeking to protect their personal privacy have nothing to gain from the court process, which is a necessary preliminary to the granting of an injunction.

It is preferable if corrections and apologies are negotiated or conciliated as part of an offer of amends procedure. The availability of court-ordered apologies would act as a disincentive to plaintiffs reaching an amicable settlement with defendants. Apart from the obvious hollowness of an apology that is only given under court direction, plaintiffs have very little motivation to negotiate a settlement unless the defendants have the ability to offer something that cannot be provided by a court determination. The Press Council has a similar view with regard to court-ordered corrections. In addition, if material published is inaccurate so as to warrant the publication of a correction, the appropriate cause of action lies in defamation, not in privacy law. It should also be noted that the publication of apologies or corrections often aggravates any injury to the plaintiff in that it constitutes a further intrusion into the individual's privacy, and may therefore be unwelcome.

The proposal that courts be empowered to make orders for the delivery up and destruction of material relating to a breach of privacy is problematic. Such material may be subject to copyright owned by the publisher. Once published, material is required to be archived as a record of publication. At some point in the future archived material may be legitimately published (for example, after the death of the individual concerned). It should also be noted that once material has been published, there is nothing to be achieved by destroying it.

Of particular concern to the Press Council with regard to the power to grant remedies is the breadth of the discretion the ALRC proposes. In addition to the specific remedies noted, there would be concern were the courts given the power to grant "other remedies or orders that the Court thinks appropriate in the circumstances". The proposed power is excessively broad, would create uncertainty and discourage attempts at settlement between parties.

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4. The Media Exemption

4.1 Retention of the exemption

The media exemption was included in the Privacy Act as an important mechanism with which to achieve balance between the twin goals of personal privacy and freedom of the press. The exemption ensures that journalists can continue to conduct thorough research in order to prepare news reports which are accurate and complete. The exemption also enables the media to publish material which the public has a legitimate interest in receiving. Any erosion of the scope of the media exemption will act as a restriction on the freedom of the press to collect information and to publish news reports.

The media exemption in the Commonwealth's Privacy Act demonstrates a recognition by Parliament of the need for a free flow of information on matters of public interest. The principal reason for the inclusion of the exemption was given by the then Attorney-General in his second reading speech on the Privacy (Private Sector) Amendment Bill:

The media in Australia have a unique and important role in keeping the Australian public informed. In developing the Bill the government has sought to achieve a balance between the public interest in allowing the free flow of information to the public through the media and the individual's right to privacy. In order to achieve this balance the Bill does not apply to acts and practices of media organisations in the course of journalism.

A range of other provisions in the Bill also recognise the important role of the media in facilitating the free flow of information to the public.

The commission has recommended the retention of the exemption. The Press Council endorses that recommendation. The exemption ensures that journalists can continue to conduct thorough research in order to prepare news reports that are accurate and complete. The exemption also enables the media to publish material that the public has a legitimate interest in receiving.

However, the commission has made some recommendations for changes related to the exemption that would have the effect of weakening it or imposing additional, potentially expensive and unnecessarily bureaucratic burdens. Any erosion of the scope of the media exemption will act as a restriction on the freedom of the press to collect information and to publish news reports.

There is no evidence that the media have acted irresponsibly since the introduction of the exemption or that the exemption has made unwarranted media misuse of private information any more prevalent. In its analysis of the situation the commission continues to refer to papers written in 1999, 2000 and 2002, either before the introduction of the exemption or before any self-regulatory or co-regulatory scheme for complaints under privacy standards could be implemented.

The Council's experience with administering the Privacy Standards for the Print Media, under the extant exemption, has been positive. By and large, the print media respect such provisions, as demonstrated by the low number of complaints received each year by the Council on such matters, fewer than 5 per cent of complaints to it are about alleged invasions of privacy. The Council, in its earlier submissions to the ALRC on its Review of Privacy has noted the success of its mediation and conciliation processes in amicably settling most of these complaints within a few weeks of their receipt. Very few complaints about alleged invasions of privacy have have been referred to the Council for adjudication.

The ALRC's own research into what the public perceives as the main causes of disquiet about privacy discovered that media intrusions rank very low. The Office of the Privacy Commissioner (OPC) reports that 1 per cent of the matters closed as being outside its jurisdiction related to the media exemption to the Act. This reflects the earlier experience of the NSW Privacy Commissioner, whose reports indicated that complaints about media intrusions formed a very small percentage of complaints about invasions of privacy.

In the absence of any evidence that the exemption in its current form is not working adequately, there should be no necessity to weaken it.

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4.2 A definition of 'journalism'

In paragraph 38.65, the commission notes that the Privacy Act should exempt from its remit media organisations that publicly subscribe to a set of privacy standards when acting in the course of journalism. It then seeks severely to curtail that exemption by trying to define 'journalism' to fit its own preconceptions of what journalism is, or should be.

In its comments on the commission's Issue Paper 31, the Council expressed a concern with the commission's Advisory Committee on its Review of Privacy Law:

The Council notes that the committee includes people with a wide experience in matters related to privacy and the administration of public and private enterprises but notes that there is no-one on the committee whose current expertise is in the area of the media or in the administration of complaints about the behaviour of the press. ...

The absence of anyone with current expertise in the media is reflected in the rather convoluted way in which the commission has set about trying to exclude from the media exemption those aspects of journalism that it does not like. Journalism is not all serious and constructive. Journalism has always included aspects that are essentially entertainment, whether through editorial cartoons, feature articles, personality profiles or opinion columns. As just one example, the commission might like to acquaint itself with H L Mencken's reporting from Dayton, Tennessee, for the Baltimore Sun, of the Scopes' evolution trial. The reports are purely 'infotainment', and are ranked amongst the best journalism in the twentieth century. The commission's definition of journalism would probably exclude Mencken's series of articles from the category of journalism.

Entertainment has been an important element in journalism since the time that pamphleteers like Defoe helped develop the modern form of the profession. It is something more than just the straight reporting of, and commentary on, matters of economics, politics and social developments. Sports, travel, food and leisure, film, music and books, and popular culture are all as worthy of coverage, in the public interest. Article 19 of the ICCPR makes no distinction about the matters covered by the freedom of communication. Former Attorney-General Daryl Williams, in his second reading speech, said: "The media in Australia have a unique and important role in keeping the Australian public informed." He didn't attempt to limit the information that should be involved.

Australia has a very vibrant magazine culture (and that includes magazine-style broadcast programs like Getaway). The journalism employed in many magazines might not conform to the view of what journalism should be, as expounded by the commission, but to seek to exclude such material from the media exemption is to seek to impose a very limited view of the role of the media in Australia. That role is already circumscribed by the absence of a protection for freedom of communication, and by a myriad of state and federal laws in the area of privacy. The commission's definition of journalism would probably exclude elements of the magazine culture from the category of journalism.

Another vibrant sector in contemporary journalism is the on-line sector. Most traditional publishers and broadcasters have supplemented their mastheads and programs with material posted to their websites. Much of this information is in the form of news and commentary on it, but there are also new forms of journalism emerging. The rise of the web log (blog), initially a personal diary of events, on which readers could comment, is one such development. Blogs are now much more than that, becoming a mixture of news and commentary on the world from a personal perspective. Many established publications now include extensive blog sections within their masthead's news websites. The development of blogs is one of the most exciting in journalism. The definition for journalism proposed by the commission risks excluding blogs

The Council's Privacy Standards for the Print Media have covered the websites of its publisher members since their introduction. In September 2007, the first purely on-line publisher, ninemsn, publicly subscribed to the Council's Privacy Standards for the Print Media. The Council sees this as a recognition that, although it is a new area of journalism, the same standards for media responsibility exist on the Internet as exists in the print editions.

There is no evidence in the Issues Paper that the Act suffers from a lack of specific definition of 'journalism', given that the term 'media organisation' is defined and there is a requirement for public commitment to a set of standards. The effect of the absence of a definition has not been tested in a court, and the commission cannot judge how a court would interpret the meaning of "in the course of journalism" should it have to do so.

In the Council's view, there are good reasons why, as the commission notes, "'journalism' is not defined in other federal, state or territory legislation, privacy legislation in comparable jurisdictions or Australian case law". The nature of 'journalism' is constantly changing as it adapts to technical innovations and the omission of a specific definition of the term removes the need for a constant revision of the definition. The Council draws the ALRC's attention to its publication, The State of the News Print Media in Australia 2006, and to its 2007 Supplement, both of which discuss in detail many of the on-going changes in journalism of which the ALRC may not be aware.

The definition proposed by the commission for 'journalism' uses largely the same terms as the Act uses to describe the nature of a 'media organisation' and is thus circular with that definition. As such it tends not to clarify in any way the main concerns that the commission might have about how the development of the new media, particularly through the Internet, might impact on the privacy of individuals. While the change would not seem to affect adversely the news media that are affiliated with the Press Council, namely publicly available, commercial periodicals, its danger is that it unnecessarily limits the media exemption.

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4.3 Adequacy of standards and enforcement mechanisms

The Press Council notes the ALRC's concerns regarding the adequacy of privacy standards to which media organisations subscribe. While there may be sound reasons for expecting that some media organisations should revise their privacy standards, the Press Council believes that the Privacy Standards for the Print Media are adequate. To the extent that the Privacy Standards for the Print Media are not consistent with what the Privacy Commissioner regards as being adequate, the Council would be happy to participate in consultation with the OPC in order to address any discrepancy.

However, the Press Council is strongly of the view that no government body, whether the OPC or any other, should have the power to oversight the Council's handling of complaints. Such review would be contrary to the principle that the press should be independent, and free from government control or intervention.

The ALRC is wrong when it says that the Council "can only publish its findings of non-compliance". The Press Council is a self-regulatory body, consequently newspapers and magazines have agreed to cooperate with the Council in resolving complaints quickly and at no expense to the complainant. The Press Council has successfully employed alternative dispute resolution techniques to achieve amicable settlement of many complaints, often resolving complaints with the voluntary publication of appropriate corrections or apologies. Principle 9 mandates that those organisations that subscribe to the Press Council's Statement of Principles are obliged to print, with appropriate prominence, findings related to their publications.

Under any compulsory scheme such cooperation would be unlikely. With a statutory regime 'policing' the press the benefits of self-regulation, its speed, inexpensiveness and efficiency, would disappear. If a body had the power to fine newspapers the result would be the involvement of solicitors, significant delays and prohibitive expenses.

The Council's sole punitive power, that of the adjudication printed by the cited publication, is more than adequate. If the ALRC needs any proof of this it might observe the editorial comments made in the last two years by The West Australian and The Australian, in response to adverse adjudications, which each newspaper nonetheless published with prominence. The ALRC might note the comments of one metropolitan newspaper editor who stated that he would rather pay a fine of $25,000 than have to publish a critical adverse adjudication, issued by his peers telling him that he had breached the ethical principles of journalism. The Council is aware from discussions with them that editors are significantly displeased when they have to place adverse adjudications in the valuable editorial space of their publications and that this possibility gives rise to a greater awareness of the privacy issues involved during the editorial decision-making processes on questionable stories.

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4.4 Conclusion

In the Australian Press Council's view, the current processes for addressing concerns about media intrusion into personal privacy are adequate and require no remedial or supplementary regulation. To the extent that any revision is to take place the Press Council believes that this should be by way of cooperation and consultation with media bodies and not by way of government mechanisms that review or oversee self-regulatory procedures.

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See also
Submission to the Australian Law Reform Commission on its issues paper, Review of Privacy.

Submission to the NSW Law Reform Commission on its Consultation Paper, Invasion of Privacy.

Index of privacy material on the website

Return to
Submissions list
Freedom of the Press overview

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