There is a monster under the bed, frightening young and old. That monster is the proposal for a tort of breach of privacy.
It is time that we turned on the lights, looked under the bed and looked our fears in the face, something that will make them disappear.
Last week the president of the Rule of Law Foundation, Robin Speed, a distinguished legal practitioner, criticised moves towards establishment of a statutory privacy tort.
Speed was reported as worrying that the moves were intended as a way of intimidating the media.
The same article reported that “government plans to encourage people to sue each other using a statutory privacy tort have been denounced as so uncertain as to undermine the rule of law”.
(Herald Sun columnist Andrew Bolt attacked it as “a sinister law, planned by a government with sinister motives”.)
An attempt to chill free speech would be of concern to all Australians rather than merely media proprietors and journalists whose self-regulation – as evident in recent media scandals in the UK and other parts of Europe – on occasion leaves something to be desired. Do we need to worry?
Bedtime stories about monsters attract attention and calls for monster-slaying. Unfortunately, there’s no evidence that the Gillard Government intends to use updated privacy law to silence the mass media.
Instead, in a belated response to recommendations in separate reports from the Australian Law Reform Commission, the NSW Law Reform Commission and the Victorian Law Reform Commission, the federal Attorney-General Robert McClelland has foreshadowed the release of a discussion paper seeking public comment about proposals for a privacy tort.
As monsters go, this one looks more like a teddy bear than something with claws, fangs and a lust for blood.
What would the privacy tort comprise? In the absence of the discussion paper we can only speculate.
The three commissions, which drew on extensive public consultation with legal practitioners, journalists, law enforcement personnel and ordinary members of the community, suggested that Australian law needs to protect individuals against injury (that is, tort) associated with an egregious disregard of privacy.
That tort would for example allow a victim to claim compensation for unauthorised video or other surveillance in a bathroom or bedroom, illicit access to medical records, or improper dissemination of sensitive personal information.
The tort would address the sort of abuses that regularly feature in the mass media and that are rightly condemned by editors, politicians and others who respect the notion of private life.
It would reflect recognition of privacy as a fundamental human right, the right to engage in lawful activity without interference from the state, from commercial entities and from prurient neighbours or strangers.
Would a tort silence the media and hobble law enforcement? Is the proposal a toxic teddy, apparently benign but destined to prevent the legitimate exposure of wrongs?
Existing privacy and data protection law specifically allows covert surveillance by law enforcement agencies, the collection of information by government bodies and collection by a wide range of non-government bodies where there is consent by individuals.
There is no reason to believe that a tort would fundamentally hamper legitimate activity in the public and private sectors or result in an explosion of litigation as neighbour sues neighbour.
What of the media? Reports by law reform commissions over four decades have emphasised that privacy law involves a balance between personal and community interests, along with the importance of a vibrant mass media.
Statements by McClelland and national Privacy Commissioner Timothy Pilgrim on the forthcoming discussion paper have been notable for their caution, even timidity.
There has been no substantive indications – as distinct from speculation by journalists – that any legislation would fundamentally restrict legitimate investigative journalism or reporting in the print/electronic media.
The reports by the commissions have been notable for their emphasis on “reasonableness” and “industry practice”, consistent with national, state and territory privacy law that enshrines industry co-regulation and common sense, rather than aggressive and pervasive supervision by government watchdogs.
Readers of The Conversation might ask whether we value privacy and whether there are times when a tort would be appropriate.
Rather than being scared by headlines and hyperbole, we should turn on the lights, look critically at particular claims and discover that there is dust under the bed rather than a monster that will eat our children.