Lawsuits no way to defend privacy or free speech

JULIA Gillard's retribution over her perceived enemies in the press has latched on to an extremist rights agenda that would reregulate free speech and encourage a more litigious society.

Her Justice Minister Brendan O'Connor has been directed to respond to the News of the World phone hacking scandal by making it easier for Australians to sue media companies for invasions of privacy. Such journalistic practice already is illegal in Britain and Australia. And there is no evidence of such Fleet Street "red top" outrages here.

But O'Connor claims that "mass breaches" here highlight that Australia has "no general right to privacy" and thus "no certainty for anyone wanting to sue for a breach of privacy".

So the left-wing junior minister from Victoria has dusted off a 2008 Australian Law Reform Commission privacy report which, from page 2535 of its third volume, argues for an extremist "tort of invasion of privacy".

Yet, as the ALRC has argued previously, the concept of a general tort of privacy is vague and nebulous, a concern repeated a decade ago by then High Court chief justice Murray Gleeson. The Law Council of Australia more recently has backed the existing "appropriate and adequate recourse to individuals who consider that a media organisation has interfered with their privacy".

But to understand the issue, it first has to be removed from the grip of the lawyers, particularly those with a rights agenda or a political grudge. For the economic issue is that digital technology has slashed the cost of gathering, analysing and distributing information, including about people.

This has raised a host of issues from ensuring that banks and hospitals keep personal financial and health records confidential, to closed circuit cameras following people's every move, to alarm that sex partners could post explicit video clips on YouTube.

But it still has been an overwhelmingly good thing, providing cheaper access to services and allowing people to bypass traditional media to communicate directly among themselves.

The new digital technology also reduces the gatekeeper role of the traditional media: anything seems to go in social media. Yet, exploiting the NOTW scandal, Labor's privacy tort is aimed at traditional media companies because they are a political target and because they still have deeper pockets than some random blogger or hacker.

The legal trick is to conflate the various digital concerns into a new form of property right: a general tort against invasion of personal privacy akin to someone breaking into your property or a home invasion. Conventional private property rights are a foundation of a democratic market economy. But a property right over individual privacy necessarily intrudes into a more basic foundation of an open society: free speech.

O'Connor fudges around this. And sensible people, such as my old mate Barrie Cassidy on the ABC's Insiders on Sunday, find it hard to understand why anyone could caution against protecting people's privacy.

The objection is that elevating privacy to a fundamental human right is designed to get around the problem that protecting it is not costless. It aims to avoid having to measure the extent of the actual problem and to figure out the most effective ways to deal with it.

Hence, the Victorian lawyers' guild argues against "any selective analysis of the costs and benefits" of the state's charter of human rights now being reviewed by the Baillieu government.

Yet getting a handle on who actually benefits, by how much and at what cost to others is central to good regulation.

There is ample evidence of the costs of allowing such open-ended rights to take root in the legal system. Before being reined in over the past decade, allowing people to sue for injury to their reputation or even honour became an Australian legal absurdity that transferred money from deep-pocketed media companies to politicians and defamation lawyers.

Even judicial officers began to exploit this legal protection racket. Without any proof of actual injury to reputation, damages for mere slights ballooned to way beyond payouts for serious workplace accidents or for common assault.

Like privacy, people's reputations are more than their own business. People rely on the reputations of those from whom they buy food, trust with their savings, take medical advice or leave their children to care for. Protecting both reputations and privacy restricts others from being properly informed by the marketplace of free speech.

Again like protecting privacy, it similarly sounds only just that those whose negligence causes injury to others should be made to pay. But not when the lawyer-controlled courts stretch the concept so far that the public liability premiums for a local fete, a surf club sausage sizzle or a local playground become prohibitive or if insurance companies refuse to cover the risks of medical surgery.

Just as defamation and negligence torts have been reformed, however, the privacy tort push has gathered momentum with the European human rights agenda, been transmitted to Britain (where it mostly has enriched celebrities) and then transported to Australia via a few activist lower court judges. This has created such uncertainty, argues the ALRC, that a whole new privacy tort needs to be legislated.

The absurdities already extend to defining as private what happens in public spaces. On the weekend, my 77-year-old father went back to the historic North Sydney pool underneath Sydney Harbour Bridge where he swam in schoolboy competitions. He was told he could not photograph the public pool because of privacy concerns of those swimming in it.

Languishing in the polls, the Prime Minister demands that News Corporation's Australian arm answer unspecified "hard questions" over the NOTW phone hacking scandal. The Greens leader who props up her government, Bob Brown, calls The Australian the "hate media" and pushes for an inquiry into breaking up News Limited.

Communications Minister and Labor factional warlord Stephen Conroy complains that another Murdoch paper, Sydney's The Daily Telegraph, is inciting "regime change", inviting the probity concern that media regulation could be influenced by politics.

Yet Gillard's privacy tort threatens all the media, not just those Labor seeks to intimidate. Putting the whole media offside is a bizarre strategy for a Prime Minister languishing in the polls and trying to sell a tax she promised never to introduce.