'Legal leader denounces Gillard government's statutory tort' by Chris Merritt states that -
Government plans to encourage people to sue each other using a statutory privacy tort have been denounced as so uncertain as to undermine the rule of law.No great surprises there. What is interesting is the statement that Speed -
The Rule of Law Institute says the privacy scheme being considered by the Gillard government is so subjective it would leave ordinary people in doubt about what they could say to each other without incurring liability.
"As far as the rule of law is concerned, it is bad to have an uncertain law and it is bad to have a law that is subjective," said Robin Speed, chairman of the Rule of Law Institute.
said it was clear the federal government had decided to revisit plans to create a statutory privacy tort as a way of intimidating the media.In the absence of the discussion paper there's no certainty that the tort is intended as a mechanism for intimidation. Establishment of a tort has, after all, been recommended by the Australian Law Reform Commission, NSW Law Reform Commission and Victorian Privacy Commission, which might lead some observers to deduce that the proposal is not Julia Gillard and her Attorney-General embarking on a wild frolic.
Speed is quoted as commenting that -
But we see this not so much as about freedom of the press but as a matter concerning ordinary Australians who could be sued or prohibited from saying things to his neighbour [with the Law Reform Commissions having provided] no proper evidentiary basis to support it -apart from the fact that emotionally 'we don't like our privacy to be invaded'.The same article reports Privacy Commissioner Timothy Pilgrim as outlining some possible alternatives to a tort. Pilgrim was speaking at a seminar in the Sydney offices of Henry Davis York; regrettably his speech does not feature on the Office of Australian Information Commissioner site.
He is reported as suggesting that a statutory cause of action for privacy could complement the existing privacy laws and address some of the gaps in the law.
On what he described as a "fairly simplistic view", he said it could be possible to address the same gaps in the law by:A copy of Speed's speech is available on the Rule of Law Foundation site [PDF].• Amending the Privacy Act and introducing mandatory data breach notification;
• Removing all exemptions from the Privacy Act;
• Extending the Privacy Act to cover actions by individuals instead of leaving it to cover organisations;
• Additional powers could also be given to the Privacy Commissioner, and;
• Extending the act to cover "territorial or bodily privacy".
The Foundation warns that -
Today, nearly 200 years after the first publication of the Australian newspaper, freedom of speech and freedom of the press remain under attack. This time the battle is the proposal of the Australian Government to pass a new law to make it illegal to talk or write the truth about another person where it "invades" that person's privacy. ...The speech goes on -
This legislative cause of action contains the emotive words “invasion of privacy” and then papers over the problems with the action by use of the words “privacy which the individual was reasonably entitled to expect in all the circumstances having regard to any relevant public interest”. That is not an objective test, but a subjective delegation to the courts.
It is revealing that the Bill contains no express reference to freedom of the press or freedom of speech. The closest the Bill gets is to state that the protection of the privacy of individuals must be balanced against other important interests "(including the interest of the public being informed about matters of public concern)". But freedom of speech and freedom on the press are not limited to informing the public about matters of public concern. The Bill displays a fundamental misunderstanding of those freedoms and a desire to marginalise them. ...
The Bill will not only operate as a defacto censor of an individual's freedom of speech but also of the freedom of the press.
It is suggested that if the Australian Government is serious in proceeding in this area of privacy, it should start by analysing the leading newspapers for the last 3 years and identifying the articles it considers invade a person‟s privacy and would be prohibited by the proposed law.
These articles should be identified so that the community can see what the Government wants to prohibit publication. This is also critical to see who will be within and those to be expressly exempt from the proposed legislation. Presumably the Government and its agencies will be exempted and excluded from the operation of the new law.
What is at stake is not only the freedom of the press but the freedom of each of us to converse without censorship and without the need for a royal commission to determine whether we can say what we want to say.
None of us want our privacy invaded, but we also want to live in an open and free community with other individuals who want the same thing.
The initial issue is whether Australia should enact into legislation a cause of action for breach of privacy and, if so, with or without enactment of the other rights, i.e. freedom of expression, freedom of the press, and a priority listing of rights. Or, alternatively, whether the common law should be allowed to develop incrementally.
The New Zealand Law Reform Commission in its 2010 Report rejected a legislative cause of action in favour of the development by the courts of the common law. The High Court of Australia has not ruled out the existence of a privacy remedy; such judicial development would allow the courts to deal with each case and develop incrementally the law as it is needed.
This battle, like those of the 1820's will only be won by critically testing the proposed law and whether there is substantial evidence that the law is necessary, that those sought to be exempt from the law should be exempt, and that the operation of the law will not extend beyond which is necessary.
