Time to stop droning on about privacy, as a tort is unnecessary

HAD George Christensen been at Griffith Uni on Tuesday, he might have cause to reconsider his support for a statutory tort of privacy.

GEORGE Christensen missed a great opportunity during the week. Had the Nationals MP been at Brisbane’s Griffith University on Tuesday, he might now have cause to reconsider his support for a statutory tort of privacy.

In July, Christensen chaired a House of Representatives committee that produced a report on the use of drones — not the flying weapons used by the military but the small, cheap and increasingly popular gadgets that are more ­accurately described as remotely piloted aerial vehicles.

By backing the creation of a privacy tort, Christensen’s committee adopted an approach that some of his government colleagues might view as a little strange. It is at odds with government policy and has been strongly influenced by moves that were put in place by the Gillard government.

On Tuesday, Griffith University held a symposium on drones, privacy and journalism that could have set Christensen on the road to enlightenment. But first, it’s worth examining how he fell into error.

His committee was influenced by the Australian Law Reform Commission’s plan for a privacy tort. But the committee placed no weight on the fact that the ALRC’s recent report on this subject has a dubious foundation.

The Gillard government, which dreamt up multiple mechanisms to hobble the media, did not ask the commission to weigh the costs and benefits of a statutory privacy tort. It was not asked whether Australians needed a new way of suing each other. It was simply instructed to design a tort.

The commission did what it was told and cannot be blamed for that. But for Christensen to embrace the ALRC’s work without unpacking its political origins and its skewed terms of reference must have caused great mirth among the Labor members of his committee. The Nat was conned.

The fact that the Christensen committee also recommended that the government should explore alternative means of achieving the same outcome as a privacy tort is, to be frank, ridiculous. It would mean confining the remedies for invasions of privacy by camera-toting drones to a small subset of society while transferring large amounts of money to lawyers.

The cost of using a tort would place it beyond the reach of those who are not prepared to spend, say, $20,000 on lawyers and court fees. And if they lose in court, the bill could be even higher. That’s some “remedy”.

At Tuesday’s symposium visiting academic David Goldberg made it clear he saw drones as a tool that should be used by the media — so long as users adhere to the rules. He placed primary importance on the civil aviation rules and was less impressed by the concerns of those he referred to as “privacy freaks”.

His argument was that drones are a tool — a new form of technology that builds on existing newsgathering techniques. And there is no reason to prevent their adoption by the media. Goldberg should knows what he is talking about. He is an adjunct associate professor of law at Southwestern Law School in Los Angeles, and an honorary visiting senior fellow at the Institute of Computer and Communications Law at Britain’s Queen Mary College.

He was impressed by the ALRC’s work. But if the goal is to prevent the media from using drones to abuse privacy, there is no need for a tort. Alternatives are already in place.

The Australian Communications and Media Authority already regulates the electronic media. It could act against privacy abuses now.

While ACMA’s reach does not extend to the print media, the federal government has plenty of leverage over the privacy practices of the press. All mainstream media outlets enjoy an exemption from the Privacy Act so long as they adhere to voluntary privacy codes. Without that exemption, investigative journalism would be impossible.

Here’s the bottom line: if the media uses drones to abuse privacy, federal agencies already have the power to bring them into line — without sending a $20,000 bill to aggrieved individuals.