Media companies warn changes to privacy laws would have a ‘chilling’ effect on press freedom

Proposed changes to Australia’s privacy laws would harm press freedom and open the floodgates for litigation, a group of leading Australian media outlets has warned.

Federal Attorney-General Mark Dreyfus and Prime Minister Anthony Albanese. Picture: Dylan Coker

A group of leading Australian media outlets has told the federal government it “strenuously opposes” any proposed changes to the Privacy Act, amid fears a possible overhaul “could have a devastating impact on press freedom … without any clearly defined need or benefit”.

In its submission to the Attorney-General’s department, Australia’s Right to Know coalition (ARTK) says it’s critical that the law retains the “journalism exemption”.

The existing carve-out in the legislation ensures journalism “is exempt from the operation of the Act, provided the organisation is publicly committed to observe standards that deal with privacy”.

In February, Attorney-General Mark Dreyfus released a proposed review into the Act, which found that Australians wanted “more agency to seek redress for interferences with their privacy”.

The proposals are not government policy.

The ARTK, in its submission, argues that paving the way for individuals to sue for “serious invasions” or privacy is a backward step, and would have a “chilling” effect on reporting.

“The nature of journalism is that information about third parties will be collected and disclosed without their consent, and often over their objection,” says the submission, which will be handed to the department on Monday.

“Good journalism will often intersect with individuals’ desire to suppress the revelation of information to the public.

“If the handling of personal information in the course of journalism leads to exposure to liability, regulatory sanctions and litigation, there will be a serious chilling effect on reporting.

“For this reason alone the proposals should be limited to responding to clearly identified problems and should be proportionate.”

The media coalition’s primary concern with the report’s proposals are that increased regulation will lead to a suppressed media; the current journalism exemption is fit for purpose and does not require amendment; there is a serious danger under some of the proposals that journalism will be exposed to “expensive and time-consuming” legal challenges; and the introduction of a tort of invasion of privacy will have “a detrimental impact on freedom of expression and will undermine news reporting”.

The submission warns that introducing a direct right of action and a tort of invasion of privacy “will cause a flood” of new legal proceedings.

“Given that defamation proceedings are no longer available to individuals who cannot demonstrate serious harm, individuals will simply shift their focus to bringing privacy proceedings … which on the proposals will have a lower legal threshold, directly contradicting the purpose of the Council of Attorneys-General in introducing the serious harm threshold into defamation legislation across Australia,” it says.

“The proposed tort will have a detrimental impact on freedom of expression and freedom of the media and will undermine news reporting; will place a significant burden on courts and industry and is inconsistent with the broader approach of governments to civil liability; fails to provide any clear public benefit; will primarily benefit wealthy and high profile individuals; and adopts a model which is problematic and will lead to negative public outcomes due to its failure to properly address the public benefit and public interest in free speech and freedom of expression.”

The ARTK says the AG’s report fails to grasp the role of journalism in society.

“The report … seems to misunderstand the important role of journalism and news reporting in a strong democracy, particularly in Australia’s democracy where it is acknowledged that media freedom requires bolstering,” it says.

Members of the ARTK coalition include News Corp (publisher of The Australian), the ABC, Nine Entertainment, the Guardian, and Free TV.