Australians will be able to sue for damages for privacy invasion under laws unveiled by the federal government, but experts say a major exemption for journalists may block the kinds of privacy suits fought overseas by celebrities and royals.
Attorney-General Mark Dreyfus introduced a bill in federal parliament on Thursday that includes a new tort, or civil action, for serious invasions of privacy. If passed, it is expected to trigger a flurry of litigation.
Actor Hugh Grant and Meghan, the Duchess of Sussex, are among prominent figures who have sued for damages under UK privacy laws.Credit: AP, Jamie Brown
The proposed laws allow a plaintiff to sue a person for intruding upon their seclusion or misusing information about them, where their expectation of privacy is reasonable. The privacy invasion must be serious, and either intentional or reckless.
Public interest
A plaintiff must satisfy a court that the public interest in protecting their privacy outweighs any public interest in the invasion raised by a defendant, and wide exemptions apply for law enforcement and intelligence agencies.
Journalists – defined narrowly to exclude citizen journalists or publishers such as WikiLeaks founder Julian Assange – collecting or publishing “journalistic material” are also exempt.
What constitutes “journalistic material” is likely to emerge as a key battleground in cases against media companies. It is defined as having “the character of news, current affairs or a documentary” and includes commentary, opinion and analysis of that material.
In the UK, in particular, celebrity plaintiffs were crucial to the development of privacy law.
University of Sydney Professor David Rolph
University of Sydney Law School Professor David Rolph, a media law expert, said Australia was “unusual in that it is having to legislate a civil cause of action” for serious invasions of privacy, rather than the law being developed through court cases as it was in the UK and New Zealand.
Australia was “also unusual because the proposed legislation specifically exempts the media”, while plaintiffs suing media outlets in the UK and New Zealand “were integral to the development of their civil causes of action”, Rolph said.
“In the UK, in particular, celebrity plaintiffs were crucial to the development of privacy law,” he said.
Celebrities shaped UK law
Supermodel Naomi Campbell sued British tabloid the Daily Mirror after it published photos of her leaving a Narcotics Anonymous meeting in 2001.
In 2004, the UK House of Lords ruled the Mirror had infringed Campbell’s right to privacy by publishing details about her treatment in circumstances where she had a “reasonable expectation of privacy”. The landmark case adapted the existing law of breach of confidence and established the tort of misuse of private information.
Naomi Campbell at The Metropolitan Museum of Art’s Costume Institute benefit gala in 2019.Credit: AP
Meghan, the Duchess of Sussex, successfully sued the Mail on Sunday and MailOnline for misuse of private information after it published vast tracts of a letter she sent in 2018 to her father. An appeal by the publisher failed.
Her husband Prince Harry, the Duke of Sussex, relied on the same law to win a phone-hacking claim in 2023 against the Mirror Group. Actor Hugh Grant has also settled phone-hacking claims.
But experts say the Australian proposal would lead to different results.
Meghan, the Duchess of Sussex, successfully sued the Mail on Sunday and MailOnline for misuse of private information.Credit: AP
‘Arguably going too far’
University of Sydney Professor Emeritus Barbara McDonald, who headed the Australian Law Reform Commission inquiry which recommended in 2014 that a privacy tort be enacted federally, said the exemption for journalists “goes much further than the ALRC had recommended”.
“It is an absolute, not a conditional exemption. For example, even if a journalist committed a crime while invading a person’s privacy, there would be no remedy: arguably that is going too far,” McDonald said.
Hugh Grant, pictured in 2023, has received damages from UK media companies for phone hacking.Credit: AP
“There may be some difficult decisions as to what counts as ‘news’ – it is not limited to matters of serious public concern.”
McDonald said the ALRC’s recommendations “fell short of a complete exemption for journalists” but “we thought that we had recommended a version of a privacy tort that was the most protective of media freedom as it could be: by providing for a hurdle of public interest before the tort would be actionable”.
McDonald said businesses examining people’s private lives, such as private detective agencies, may fall foul of the laws “unless they can persuade a court that their invasive behaviour is justified in some public interest, such as preventing fraud”.
Dr Michael Douglas, a consultant at WA law firm Bennett, said the “blanket exemption for journalism” was “a really bad idea, for a few reasons”.
“First, dodgy hack journalists are the most likely to engage in the kind of activity this tort could respond to – think of Prince Harry’s phone being hacked by tabloids in the UK.
THE PROPOSED LAW
- Allows people to sue for damages if someone intrudes upon their seclusion, or misuses information about them, when they had a “reasonable expectation of privacy”.
- The privacy invasion must be serious and either intentional or reckless.
- A plaintiff must satisfy a court that protecting their privacy outweighs any public interest in the invasion raised by a defendant.
- A range of defences are available, including lawful authority and consent.
- Law enforcement and intelligence agencies have broad exemptions.
- There is a major exemption for journalists involved in the “collection, preparation for publication or publication of journalistic material”, meaning “news, current affairs or a documentary”. This includes commentary, opinion and analysis.
- Damages are expected to be capped at the maximum available for non-economic loss in defamation cases. This is currently $478,500.
“Why shouldn’t those dodgy tabloids get sued when they do the wrong thing? Second, the tort already has a defence built in where the invasion of privacy was in the public interest. This could protect quality public interest journalistic activities that uncover wrongdoing by invading privacy – good journalism is already protected. And third, the ALRC never recommended this journalism exception.”
He said the government appeared to be “scared of copping criticism from right-wing media companies” and the legislation was “gutless”.
‘A lot of test cases’
Minter Ellison senior associate Dean Levitan predicted there would be “a lot of test cases”, including about what constituted a serious invasion of privacy, what is considered in the public interest, and who is a journalist.
“The bill accepts privacy invasion will occur, and then [effectively] it says, ‘Have you done it for a sufficiently good or justifiable reason?’,” Levitan said.
On the face of it, the bill provided “robust, multilayered protections” for journalists, Levitan said, and it was more likely that government departments, banks and corporate entities misusing data could be a target for lawsuits.
Sam White, a member of Nine’s legal team, said: “From the media’s perspective, the key battleground here is far narrower than it could have been under a different model.
“Some plaintiffs may argue for a narrow interpretation of what defines journalism, but in my view the government’s intention is clear: all journalism is exempt.”
White said “the media’s concern with any law restricting free speech, including this tort, is the potential for it to be weaponised by well resourced plaintiffs who want to stymie legitimate and lawful public discussion”.
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