Breaching confidence: do we need a privacy tort?

Would a right to privacy have helped Lara Bingle? AAP Image/Tracey Nearmy.

Who would have predicted there would be serious talk of a statutory privacy tort in Australia, giving private individuals who feel their privacy as been breached the right to sue? But then again, who would have predicted a phone hacking scandal to engulf the Murdoch press?

Some politicians have already come out openly in support of a privacy tort but the Australian’s senior legal writer, Chris Merritt has dismissed the connection saying we have criminal law to deal with phone hacking plus defamation and other laws to protect individuals. He questioned the need for a privacy tort - especially one as draconian in its treatment of the Australian media as that recommended in 2008 by the Australian Law Reform Commission.

However, what this discussion sidesteps – as much of the discussion in the press has to date – is that we already have a significant body of common law protection of privacy fashioned through case law, which does or should constrain the media. It also overlooks the fact that politicians will have little control over how a tort would be used and ignores the centrality of the role of judges in deciding breaches of privacy on a case by case basis.

Tensions between public interest and privacy

In an article published in the Australian, Former High Court judge Michael Kirby points out that privacy may be a human right but so equally is freedom of speech and the press. Rather than giving either automatic precedence both should be acknowledged in any privacy cause of action and if need be, in cases that get to court, the two should be reconciled. This acknowledges that judges have a critical role in ruling breaches of privacy, and that each case is different.

It is also part of the history of our common law protection of private information. One problem is that our main source of common law protection goes by the antiquated idea of “breach of confidence”. This gives the false impression of a confider and confidant. In reality the compass is far broader – and the doctrine is really one of misuse of confidential information, including information of a private character.

What is a breach of confidence?

In the “defence papers case” Commonwealth v Fairfax involving the publication of Australian government confidential defence and foreign policy documents, Justice Anthony Mason referred to breach of confidence as, by old authority, a doctrine restraining “the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged or of information imparted in confidence which ought not to be divulged”.

And in the “possum abattoir case” ABC v Lenah Game Meats chief justice Murray Gleeson noted the English judge, Justice Laws’ comment that, “If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would… as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it.”

In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. In all such cases, the public interest can always be considered as a defence.

Chief justice Gleeson agreed with that proposition, adding that to adapt it to the Australian context, account should also be taken of the freedom of political communication which the High Court has held implicit in the democratic principles of the Australian Constitution. This suggests that the defence is particularly stringent where that implied freedom applies.

What’s private? Not as easy as you think

It is important to note that each case is different, and judges will always have to make a call in regards to the privacy of individuals and groups, and the public interest. One case involved animal rights activists who secretly entered a game meat abattoir’s property to film its possum slaughter processes then handed the film (through an intermediary) to the ABC who proposed to show on its 7.30 Report program.

The abattoir sought an injunction but did not claim breach of confidence, conceding rather that the information as to its animal slaughter methods was not confidential. Instead it argued the High Court should recognise a new tort of privacy to cover their case. Chief justice, Gleeson said that breach of confidence would have been adequate to cover the case if “the activities filmed were private”.

Even if so, the Chief Justice’s references to the public interest defence and constitutional freedom of communication suggests the ABC might have had a good defence. As Justice Kirby pointed out in his judgment, this was a government licensed abattoir and the public is entitled to know that the government is concerned to ensure that animals at the abattoir are being treated humanely.

The Australian government’s recent action over live meats exports shows it accepts this responsibility, and the ABC’s role in uncovering the problems there is worth noting and preserving.

At home in your underpants is private enough, right?

But what if the situation has been slightly different? What if it was an individual not a company? What if that individual was filmed or photographed engaged in a private activity rather than a corporation concerned about its public reputation?

Chief Justice Gleeson, for example, noted “a film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence” – as would “information relating to health, personal relationships, or finances”.

If the information was secretly or otherwise improperly obtained, there is a good argument that its publication could be restrained or a remedy granted after the fact on the basis of breach of confidence, unless a public interest could be shown to justify the publication. Although with the publication of a man in his underpants it’s hard to see the public interest argument.

Privacy and the real world

These are not just hypothetical legal scenarios that could never arise in Australia. In fact, the prospect of an improperly obtained video recording of a man in his underpants being aired on Australian television was very real.

In March 1998, the police filmed the execution of search warrant on a house, showing a suspect in his bedroom dressed only in underpants. Channel 7 was going to show the video but an injunction was granted. In this case, as often occurs in cases where other grounds are available, breach of confidence as such was not relied on. But in Lenah, Gleeson CJ suggested it might have been.

The case of Lara Bingle’s objection to publication of the infamous shower picture in New Idea is another example. Certainly, there are English cases where confidentiality claims against the media have succeeded involving weaker arguments of privacy and stronger arguments of free speech than were apparent in the Bingle scenario.

That many of those English cases have arisen in the wake of the Human Rights Act 1998 makes their authority in the Australian context more debatable. The Act brings into English law the European Convention on Human Rights, including the right to privacy in Article 8 along with the right to free speech in Article 10, and gives English courts the responsibility to develop its law in accordance with those rights.

Phone hacking would be a breach of confidence

It could be argued that the absence of an equivalent Bill of Rights at the Australian level means that privacy is not, or need not be, so highly valued here. But can this be said of private phone hacking? I would think many Australians would consider this a breach of their privacy.

And it would likely be a breach of confidence as well. Well before the Human Rights Act, there was a 1984 English case where an illegal bug was placed on the jockey John Francome’s private telephone line. The tapes had been offered for sale to the Daily Mirror whose reporters approached Francome to confirm their authenticity. Francome and his wife promptly brought an action in breach of confidence seeking an injunction to stop its publication of the transcripts, or extracts. The defendants denied their liability and argued, alternatively, that publication was justified in the public interest as exposing Francome’s breaches of racing rules. Thus, they said, the balance of convenience lay in their favour, so the injunction should not be granted.

Nevertheless, the injunction was granted. The Court of Appeal held that the unlawful telephone tap was improper obtaining, the newspaper which had notice of the wrongdoing would also be liable as a third party for breach of confidence if it went ahead with its publication, and the public interest did not justify this since the tapes could have been given to the police or jockey club to deal with through official channels.

This case suggests that in Australia as well as the United Kingdom unlawful telephone tapping by the media would be a prima facie breach of confidence, and that given the unlawfulness of the conduct the burden on the media to show the public interest supports its action is very high. Although a court might allow an argument that there is good ground to suspect misconduct and the police could not be left to handle the investigation. But the significance of breach of confidence in cases such as Francome is not widely known.

Does a tort have any benefits?

One advantage in a new statutory tort of privacy is transparency. If even a senior legal reporter does not refer to breach of confidence what is the rest of Australia’s population to make of their legal rights in the (hopefully unlikely) scenario they find their telephones tapped for media reporting on some current story?

That said, there may be clearer ways to acknowledge the importance of freedom of speech and the media than in the Australian Law Reform Commission’s proposed statutory tort (where it is a matter to be “taken into account” in a court’s determination of invasion of privacy).

The Victorian Law Reform Commission, in its more recent proposal for a statutory cause of action of misuse of private information, has gone further in providing a full public interest defence. To me that seems the better approach.