10 April 2013

Defamation, Confidentiality and Privacy

In Sands v State of South Australia [2013] SASC 44 the Supreme Court of South Australia has found against photographer Derick Sands in his action for defamation against the State of South Australia.

As discussed in my article in this month's Privacy Law Bulletin, Sands also unsuccessfully claimed breaches of statutory duty, duty of care, duty of confidence and duty of privacy. He had already unsuccessfully sued Channel 7 and the ABC in Sands v Channel 7 Adelaide Pty Ltd [2009] SASC 215;  (2009) 104 SASR 452. His appeal to the Full Court in the latter case was dismissed [2010] SASC 202. His application there for special leave to appeal to the High Court was dismissed [2011] HCA Trans 20 (11 February 2011).

The South Australian Police Force (SAPOL) had made various statements at a press conference and in a media release during investigation into the murder of Corinna Marr. Those statements identified Sands as a prime suspect for the murder of Ms Marr.

The Court has found that although the media release and press conference exceeded what was reasonably necessary to achieve stated purpose for which the publications were made, SAPOL was justified in doing so because there were reasonable grounds to suspect Sands of the murder and because the evidence supported a conclusion that his conduct warranted reasonable suspicion.
The asserted duties in confidence, privacy and negligence said to flow from the Forensic Procedures Act are inconsistent with the obligations of the police to investigate a serious criminal offence. There is no general duty of confidentiality in the course of investigations which is recognised in Australian law. Subject to the restrictions contained in the Forensic Procedures Act, the defendant was under no general obligation to keep the fact of the forensic procedures application secret. Police had a duty to investigate the murder of Ms Marr. It may well involve them making a number of disclosures to various people in the course of the investigation. The very fact that the matter was only at an investigation stage might well involve the police in making allegations and inquiries which are both unproven and untested. Subject only to the statute and the law of defamation, the police owed no duty to the plaintiff as a suspect to keep the circumstances of the investigation a secret.
Sand’s family, friends and work colleagues knew that he was a suspect. The Forensic Procedures Act 1998  (SA) does not give rise to a civil cause of action and even if SAPOL breached the confidentiality provisions of that statute the plaintiff did not suffer loss. The Telecommunications (Interception and Access) Act 1979 (Cth) does not give rise to a civil cause of action. The Court also held that Sands' claim in breach of statutory duty was unpersuasive: no duty of care can be imposed where it would lead to conflicting duties upon police and incoherence with the law of defamation.

Unsurprisingly, the Court held that the tort of privacy is not recognised in Australian law. The information published by SAPOL was not in the nature of material that could be expected to be kept confidential.
The plaintiff relied on a decision in the Victorian County Court of Doe v Australian Broadcasting Corporation  to assert the existence of a tort of privacy and a breach of that right by the actions of the police in this case. 
The first observation I make about Doe is that in that case there was a duty owed to a victim of crime by virtue of the statute itself which establishes protection from publication by the media of the name or identity of any victim of crime. Here, there is no suggestion that there has been any publication by the police of the plaintiff’s name or identity by virtue of the making of the Forensic Procedures Act
In my respectful view, the reliance by the Court in Doe on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd is misplaced. The ratio decidendi of the decision in Lenah is that it would require a further development in the law to acknowledge the existence of a tort of privacy in Australia. In my view, the statements of the majority in Lenah do not support the suggestion that the High Court in Lenah held out any invitation to intermediate courts in Australia to develop the tort of privacy as an actionable wrong. 
In Doe, the relevant confidential information improperly communicated by the ABC was information that the plaintiff had been raped. That was the information the subject of the statutory prohibition. On the facts here, none of the information relied on by the police in making the forensic procedures application was confidential. The police formed a suspicion based on grounds which were disclosed in an affidavit. Any asserted breach of a duty of confidence in relation to such information is, for the reasons I have explained, in conflict with the duty of the police to investigate serious crime. A suspect cannot claim that he or she has a right to privacy in respect of any information that might inculpate them in the commission of a serious criminal offence. Nor can he or she claim that such information as it related to him or her is in some way confidential. The information relied on by the police in making the forensic procedures application had been obtained by them in the course of their investigation into the murder of Ms Marr. 
In summary, the defendant never disclosed any private information about the plaintiff in the context of making the application under the Forensic Procedures Act. The only disclosures made by the defendant were in the course of taking a lawful step in the course of the investigation. The refusal of the plaintiff to voluntarily provide a sample of his fingerprints left the police with no other option but to obtain an order under the Forensic Procedures Act. The suggestion that the police must keep confidential and private the fact that someone is a suspect and the fact that they are in the course of making inquires in relation to that person is in conflict with their duty to properly investigate all serious crimes.