Australian Press Council response to the New South Wales Law Reform Commission on its Consultation Paper 1, Invasion of Privacy

14 September 2007

Executive Summary

The NSW Law Reform Commission has been asked to look at three particular matters in respect to privacy. Its consultation paper concentrates on one of those matters, the question of a putative statutory cause of action in privacy, while largely neglecting the other two matters:

• the question of national consistency in any privacy regime; and
   
• how best to harmonise the existing privacy regime in NSW.

The Australian Press Council's response to the consultation paper argues that there is no persuasive case for a statutory cause of action, and suggests that the question can only be properly addressed within the context of the other two specific terms of reference.

1.1 Introduction

The Australian Press Council strongly opposes the introduction of a statutory cause of action for breach of privacy. It is both unnecessary and undesirable.

The arguments put forward in the consultation paper, clearly supportive of such action, are not persuasive. Such a cause of action needs to be strictly defined to ensure that it does not undermine freedom of speech and the recent uniform national defamation reform. The advocacy of a general, undefined cause of action is a way of avoiding any serious engagement with the real issues raised in the terms of reference.

Any discussion about the protection of privacy must engage simultaneously with the public's right to be informed, that is, the freedom of communication guaranteed under Article 19 of the International Covenant on Civil and Political Rights. A balanced analysis of the competing rights of privacy and freedom of expression must be mapped out as a first requirement if subsequent discussion of detailed privacy issues is to have any credibility. In a civilised society both privacy and freedom of communication are rights that warrant respect and protection.

Achieving balance between privacy and free speech is inescapably a political issue, not just a question of legal reform. Without a bedrock reference point any proposal for a legal initiative will be flawed.

The consultation paper does not address either of the first two specified terms of reference. The terms of reference require the commission to consider the question of national consistency in any privacy regime and how best to harmonise the existing NSW privacy laws. Not only does the consultation paper fail to adequately address these issues, the implementation of recommendations put forward in the paper would be contrary to any national unity that already exists under the federal privacy legislation.

The fact that the common law on its own will be slow to evolve a tort of privacy is not a reason to introduce a statutory cause of action. On the contrary, it suggests that the issues are complex and is a reason not to venture blindly.

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1.2 The importance of balancing privacy and free speech

The proliferation of closed-circuit television cameras throughout our cities, the surveillance of work places and monitoring of office computers may leave ordinary citizens with the view that little they do is private any more. Webcams that monitor everything from shipping movements in ports and harbours to snow and surf conditions to street scenes combined with the constant abuse of people at home by telemarketers and the cross-matching of information on ever more extensive databases exacerbate the perception that personal privacy is disappearing. But the existing range of legislation, state and federal, quite comprehensively addresses these issues. The march of technology, via computer cross-referencing of otherwise innocent public material, may be the main issue for most citizens.

Strengthening of protection of that sort of privacy is not the primary concern of the consultation paper. The paper deals with privacy protection in relation to broad and undefinable privacy issues, and protection of a person's reputation, i.e. defamation, already comprehensively reformed and nationally harmonised in 2006.

It is difficult to avoid the conclusion that the commission is contemplating an egregious extension of the protection of information that individuals want to keep private but which, in the public interest, ought to be publicly available - the classic definition of news.

The question of where the line is drawn is essentially an ethical issue. The Press Council has for many years dealt successfully with questions of privacy in relation to what the print press publishes. It takes into account the balance between personal privacy rights and the right of the public to be informed by considering the following:

• consent and harm (whether there is consent, implied or direct, on the part of individuals concerned; whether the parties directly involved have complained; and whether harm has been done);
   
• the public interest (whether there is a level of public interest sufficient to justify invasion of privacy);
   
• the extent to which the individual is a public figure and to what level of privacy the individual is entitled as such;
   
• whether the individual is a child and warrants a greater level of privacy protection; and
   
• whether the personal information being disclosed concerns sensitive matters as defined in the Privacy Act, such as health information, and whether disclosure can be justified.

Privacy issues, whether through interpretations of the existing federal Privacy Act, proposed new legislation in areas such as surveillance devices or the publication of images or judicial determinations, are already having a major impact on the ability of the press to report freely on matters of public concern and are likely to have a further adverse effect over the next few years.

The existing over-emphasis on privacy rights at the expense of the public interest, is evidenced in irrational reporting restrictions imposed by governments in relation to their own dealings, in unnecessary and undesirable closing of courts, in the denial of information regarding people charged with crimes, and in restrictions on photographers. The acronym, "BOPA", has come into common parlance as agencies restrict the availability of information "because of the Privacy Act".

Examples of this are rife.

• In Melbourne recently a murder suspect went to a hospital seeking treatment for an injury sustained during the commission of an offence. Despite the fact that police were searching for the man, hospital staff wrote on his card that police were not to be notified of his whereabouts on the grounds of privacy.
   
• Police refused to release to a newspaper the record of a deceased criminal on the grounds that he had not given his consent to the release.
   
• Access to files in the Administrative Appeals Tribunals and other similar tribunals that should be available under the normal rules of open justice are being refused prior to the hearing on grounds of privacy.
   
• Access to police mug shots on court files, even of convicted persons, is regularly denied on privacy grounds until after sentencing.

The media exemption in the Commonwealth's Privacy Act demonstrates a recognition by the legislature 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:

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.

Yet this laudable aim is being thwarted at every turn by the actions of officials in their interpretation of the way the provisions should be applied. There is nothing in the commission's consultation paper that addresses these concerns.

The recent disclosure of the medical records of two AFL players who had twice tested positive to the use of illicit drugs has been cited as an example of the sort of invasion of privacy that might be addressed by a statutory cause of action for breach of privacy. However, in this case, the identity of the players was not in fact disclosed. Further, the fact that the individuals who disclosed the confidential files are being dealt with by the courts under existing legislation illustrates that the law already provides adequately for such situations. Currently, the federal Privacy Act prohibits the disclosure of personal information, including medical records; individuals who suffer injury as a consequence of such breaches have recourse to the common law tort of breach of statutory duty to provide a cause of action without the necessity of new, undefined cause of action for breach of privacy.

The absurdities that have arisen within existing privacy law, curtailing freedom of speech and the public's right to be informed, strongly suggest that privacy law has perhaps already gone too far in protecting privacy at the expense of freedom of communication. Under existing law privacy has much greater protection than freedom of speech, which has only implied constitutional protection.

The commission was asked to look at ways in which some of the existing anomalies and inconsistencies within the state's privacy regime might be addressed. The Press Council is at a loss to understand how the introduction of a largely undefined cause of action for breach of privacy will do anything to assist in developing a consistent legislative approach.

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1.3 Should NSW introduce a cause of action for breach of privacy?

The consultation paper notes disapprovingly that judges have been reluctant to establish a general tort of privacy in common law. "Judicial reluctance" is given as a reason for proceeding with a statute[para 1.37]. Presumably the judiciary has been wary of going further that it has because of the potential for such a tort to act as an impediment to freedom of speech, a good reason for hesitating rather than engaging in judicial adventurism. The High Court in Lenah Game Meats stressed that the necessity for the media to publish or broadcast matters of public concern was an important consideration. In the Council's view, the commission should continue to prefer the same sensibly cautious approach that the judiciary has taken. Insofar as it is needed, a cause of action is something that should evolve over time in response to matters being brought before the courts.

In practice, there have been tentative steps towards recognition a cause of action for breach of privacy in Australian jurisdictions in cases heard since the High Court's decision in Lenah Game Meats. These include the matters of Grosse v Purvis and Doe v ABC.

Moreover, other common law causes of action can be relied upon as the basis for proceedings seeking compensation for various aspects of breach of privacy. Breach of confidence, breach of statutory duty, trespass and copyright can all be utilised to enforce various privacy rights.

A large number of statutes already regulate privacy protection in Australia. In addition to the Commonwealth's Privacy Act, these include the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth); the Privacy and Personal Information Act (NSW); the Workplace Surveillance Act 2005 (NSW); the Health Records and Information Privacy Act (NSW); the Family Law Act (Cth); the Telecommunications Act 1997 (Cth), the National Health Act 1953 (Cth), the Data Matching Program (Assistance and Tax) Act 1990 (Cth); and the Crimes Act 1914 (Cth). A (non-exhaustive) list of existing legislation, state, territory and federal is attached.

The consultation paper sets down an excessively broad list of possible examples of breach of privacy that might be included in the legislation[para 6.32]. This list would encompass conduct which not only falls outside the scope of privacy but also falls squarely within other causes of action, thereby conflicting with and undermining other legislative schemes. This would have the opposite effect to the term of reference that sought that the commission consider the desirability of a consistent legislative approach to privacy.

In paragraph 6.32, sub-paragraph (d), for example, refers to unlawful attacks upon a person's honour and reputation. Such attacks would, prima facie, be defamatory, and to include them within the purview of privacy protection would clearly conflict with defamation law and would undermine the intent of the recent reforms effected by the uniform defamation legislation.

Similar criticisms could be made of sub-paragraph (e) - which refers to placing an individual in a "false light" - unless it were qualified by the inclusion of a requirement that this was done by way of a breach of privacy as otherwise defined. In other words, placing an individual in a false light might aggravate a breach but could not in itself constitute a breach of privacy.

The blurring of the distinction between causes of action for breach of privacy and for defamation which is evident in these two sub-paragraphs suggests that the commission has a deliberate intention to wind back, by way of privacy legislation, the reform of defamation law. Specifically, the proposed cause of action would appear to be intended to reintroduce the requirement of "public interest" which, prior to the harmonised state and territory Defamation Acts, was a necessary hurdle to any publisher seeking to mount a defence on the basis of truth in NSW. Justice David Levine, referring to the public benefit test, stated that he could not recall a single case where a publisher was able to prove that its conduct had been reasonable. He also expressed the view that judges have an ingrained prejudice about the media that makes it difficult to establish the defence. The public interest component of the truth defence was omitted from the harmonised law in recognition of the fact that it acted as an impediment to freedom of expression. Therefore it would not be appropriate to reintroduce it by stealth, through a poorly defined cause of action for breach of privacy.

Sub-paragraph (a) ["interferes with that person's home or family life"] is excessively bro
nd requires the insertion of a clause that qualifies it [For example, referring to the character of such interference or the particular aspects of family life impacted upon]. Sub-paragraph (g) (use of identity or voice without consent) is problematic since it straddles the areas of privacy protection, trade practices law and intellectual property.

The examples of supposed breaches of privacy given in paragraph 6.32 suggest that the commission's notion of privacy is far larger than that which would be appropriate in order to protect privacy. The commission's view extends the proposed privacy protection to a wide range of conduct that is already adequately provided for in Australian law. This reinforces the lack of necessity of a statutory cause of action for breach of privacy. More disturbingly, whether by accident or design, it is possible to interpret the discussion as an intention to sacrifice freedom of expression on the altar of privacy protection. In the Council's view, both values need protection and a more equitable balance between them needs to be found.

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1.4 The importance of national consistency in privacy regulation

Existing laws appear to provide for legal action in relation to the main concerns that the public has with intrusions into privacy (most of which are related to direct marketing and cross-matching of databases, as shown by an Australian Law Reform Commission (ALRC) study conducted last year).

The ALRC is currently conducting a review of the federal Privacy Act. It would be preferable to have nationally consistent privacy law. The terms of reference for the commission's inquiry indicate that this was the thinking of the Attorney-General, who sought from the commission its views on the desirability of such uniformity. The commission should not proceed further with its inquiry until the outcome of the federal review is known. The Council believes there is no evidence available to support arguments to dilute existing media protections rights in the federal Privacy Act. (In fact, in its Discussion Paper 72, Review of Australian Privacy Law, issued on 12 September 2007, the ALRC strongly endorses the retention in the Act of the media exemption, with some minor amendments better to define some terminology. It also endorses the continuation of the self-regulatory handling of the relatively small number of complaints about breaches of the Privacy Standards for the Print Media by the Press Council.) The consultation paper offers no persuasive arguments from the commission as to why there is a need to supplement the current regime, with a cause
ction specific to NSW, or where the current privacy regime fails the test of national consistency.

Nationally, simplicity and constancy are to be valued over a dog's breakfast of legislation. Any state-based legislation establishing a statutory cause for action for breach of privacy would have to be consistent with the existing federal legislation and provide for an exemption where media organisations publicly subscribe to a set of privacy standards. To do otherwise would bring the state law into conflict with section 7B(4) of the federal Privacy Act:

(4) An act done, or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in:

(a) by the organisation in the course of journalism; and

(b) at a time when the organisation is publicly committed to observe standards that:

(i) deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and

(ii) have been published in writing by the organisation or a person or body representing a class of media organisations.

Under this provision, newspapers, magazines and their Internet sites that publicly subscribe to the Press Council's Privacy Standards for the Print Media (the overwhelming majority of such outlets - the list is published on the Press Council's website) are exempt for the remit of the Act. The cause of action for breach of privacy proposed by the commission would have the effect of nullifying this exemption unless the new legislation includes a clause mirroring this exemption.

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1.5 Privacy as a threat to free speech

In addition to regarding a statutory cause of action for breach of privacy as unnecessary, the Press Council's over-riding concern is that such a cause of action will act as an impediment to the operation of a free press. The freedom of the press to report is the freedom of the people to be informed on matters of public interest and concern. The media have a crucial role in scrutinising the conduct of public figures and ensuring that such conduct is brought to public notice when it calls into question the suitability of individuals to hold positions of responsibility or influence. This is an essential element in the process of maintaining accountability.

The contention that public figures, like other individuals, have a right to privacy is not in dispute. In Adjudication No 916 (April 1997), arising from the publication of a picture of a senator and his wife arguing in their backyard, the Press Council said clearly that public figures are entitled to privacy from media intrusion in their private lives. However, there are occasions when the media are required to breach an individual's right to privacy in order to bring to public notice issues which impact upon matters of public concern, including government or corporate responsibility.

Examples would be where public figures' private dealings are in conflict with their public duties; where their private conduct calls into question their character or integrity; or where an office holder's private communications rebut a public untruth. A tort of privacy may jeopardise the ability of the media to investigate, report and comment upon material of this nature.

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1.6 Unauthorised images

The Press Council is concerned that any cause of action for breach of privacy, will give individuals the right to bring actions in respect of photographs taken in public without specific authority or consent. As the Council argued in our submission in response to the discussion paper, Unauthorised photographs on the internet and ancillary privacy issues [Standing Committee of Attorneys-General, 2005], restrictions on the taking of photographs in public places would severely and unreasonably impede the ability of photographers to record events, including sporting and community activities and important historical occasions. A requirement for photographers to obtain permission from people who are photographed in public would be practically unworkable, particularly where several people are photographed in a group or crowd. Coverage of sporting and other public events involving large numbers of people would not be possible if restrictions were to be placed on photographing people without their consent.

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1.7 Conflicting rights

In the consultation paper, the commission refers to a number of countries that have in place some form of privacy protection that encompasses a cause of action for breach of privacy. However, it is important to acknowledge that those countries also have in place protections for freedom of communication that act as a balance to privacy rights.

The commission examines in detail questions related to Article 17 of the International Covenant on Civil and Political Rights (ICCPR) mandating the right to privacy, but does not give any consideration to Article 19 of the ICCPR, which mandates freedom of communication. The two are strongly interlinked and the enactment of laws giving protection to one without the other would create a serious imbalance that would threaten the proper functioning of a civil democracy.

The United States has the First Amendment to its Constitution; New Zealand has the Bill of Rights Act 1990; Europe has Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; France has Article 1 of the Press Law 1881; Quebec has section 3 of the Charter of Human Rights and Freedoms. No such protection exists in NSW, apart from that inferred by the High Court in Lange, and which relates solely to political communication. Victoria and the ACT have each enacted human rights legislation that is based on the ICCPR. This legislation includes protection for both a personal right to privacy and the public right to freedom of communication - the right to be informed on matters of public interest and concern.

It would not be appropriate to proceed with any cause of action for breach of privacy in the absence of a statutory or constitutional protection for freedom of expression.

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1.8 Self-regulation

The Press Council does not dispute the contention that personal privacy is a commodity worthy of protection. On the contrary, all citizens should be able to enjoy freedom from intrusion into their private lives. However, the best way to protect the privacy of individuals is not by litigation and monetary awards, particularly where access to such litigation and awards is surely going to be dependent on a citizen's ability to finance such litigation. Privacy is best protected through effective systems of self-regulation involving publishers, broadcasters, journalists and members of the public.

Under the media exemption to the federal Privacy Act, media organisations that publicly subscribe to a set of standards are exempt from the remit of the Act. Since 2001 the Press Council has administered the Privacy Standards for the Print Media, under which those who believe that their privacy has been invaded can make complaints and have them considered, conciliated or adjudicated.

The following summary demonstrates that, despite previous assertions, alleged invasions of privacy by the print media are neither rife nor the major cause of concern to complainants. The summary also reinforces the view that a reasonable self-regulatory scheme addresses the existing public concern with the small number of complaints about the print media's behaviour in this area, without the need for statutory remedy. The Press Council's mechanism is efficient, speedy and inexpensive. It is open to any person whose privacy may have been breached by the print media.

In the year 2001-2002, out of a total of 390 complaints dealt with by the Council only 23 related to privacy matters. Five were refused, four were settled by mediation or otherwise settled to the complainant's satisfaction; and four were adjudicated (No. 1144 upheld a complaint against a general interest magazine; No. 1160 was dismissed; No. 1162 dealt with complaints against two newspapers, one of which was upheld and one dismissed).

In 2002-2003, the Press Council received a total of 367 complaints. Of these, 22 complaints cited the Privacy Standards. Two were the subject of adjudication (No. 1189 and No. 1192, both complaints were dismissed); in four cases the complainant preferred to take legal action; and the vast majority were settled by mediation or otherwise settled to the complainant's satisfaction.

During 2003-2004 the Press Council received 417 complaints and, of these, there were 24 new complaints that cited the Privacy Standards. One was the subject of adjudication (No. 1219 - which was upheld in part but not on the question of privacy invasion); in two cases the complainant preferred to take legal action; three were carried forward and the majority (14) were settled by mediation or otherwise settled to the complainant's satisfaction. Two matters carried forward from the previous year were also successfully mediated.

2004-2005 saw a total of 426 complaints of which 25 were privacy related. One on these was adjudicated (No. 1277 that dismissed the complaint); in three cases the complainant preferred to take legal action; three were carried forward and the majority (12) were settled by mediation or otherwise settled to the complainant's satisfaction. Three matters carried forward from the previous year were also successfully dealt with.

In 2005-2006 the Press Council received 420 complaints of which 23 were privacy related complaints. Four of these were adjudicated (No. 1299 upheld the complaint of an invasion of privacy; No. 1312 upheld the complaint but not on privacy grounds; No. 1316 found that the newspaper had not sufficiently protected the privacy of two young women; and No. 1318, where the complaint of unfair treatment was sustained but the complaint of an invasion of privacy was not); in 3 cases the complainant preferred to take legal action; three were carried forward and the majority (12) were settled by mediation or otherwise settled to the complainant's satisfaction. Three matters carried forward from the previous year were also successfully settled.

In 2006-2007 the Press Council received 421 new complaints of which 26 were privacy matters. Of those, four were adjudicated (No. 1338 upheld two separate complaints of an invasion of privacy of Cornelia Rau; No. 1344 upheld the complaint about the publication of a protest organiser's phone number; No. 1350 dismissed a complaint on the grounds that the information was on the public record); in 3 cases the complainant preferred to take legal action; nine were refused; two did not provide the required additional information, one was referred to another body, one was carried forward and the rest (six) were settled by mediation or otherwise settled to the complainant's satisfaction. Two matters carried forward from the previous year were also settled, one to the complainant's satisfaction and one by adjudication (No. 1327 upheld a complaint, saying that there was no public interest justification in the publication of images of a public figure's children).

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

Index of privacy material on the website

Return to
Submissions list
Freedom of the Press overview

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