Public interest matters

9.36       The ALRC recommends that the Act include a non-exhaustive list of public interest matters that a court may consider when considering whether an invasion of the plaintiff’s privacy was justified, because it was in the public interest. The list would not be exhaustive, but may provide the parties and the court with useful guidance, making the cause of action more certain and predictable in scope (which may in turn reduce litigation). This is preferable to including a restrictive definition of ‘public interest’ in the Act, and to not providing any statutory guidance.

9.37       In Hogan v Hinch, French CJ stated that when ‘public interest’ is used in a statute, ‘the term derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest’.^[23]

9.38       In a 2012 report, a UK Joint Committee on Privacy and Injunctions said that the ‘worst excesses of the press have stemmed from the fact that the public interest test has been too elastic and has all too often meant what newspaper editors want it to mean’.^[24] The Committee emphasised that ‘the decision of where the public interest lies in a particular case is a matter of judgment, and is best taken by the courts in privacy cases’.^[25]

9.39       Including a non-exhaustive list of public interest matters seems more helpful than attempting a definition of public interest, which might necessarily have to be overly general or overly confined and inflexible.^[26]

9.40       Community expectations of privacy change over time. This is another reason to include a non-exhaustive list of public interest matters for a court to consider, rather than a definition of public interest. It will allow the scope of public interest to develop in line with changing community attitudes and developments in technology.

9.41       There is precedent in Australian law and in regulation for providing guidance on the meaning of ‘public interest’, for example in the public interest exemptions in the Freedom of Information Act 1982 (Cth).^[27]

9.42       A number of stakeholders expressed support for including a non-exhaustive list of factors in the Act.^[28] However, the Law Institute of Victoria submitted that the Act should not provide guidance on the meaning of public interest:

This is a phrase commonly used in legislation and one with which courts are familiar. ‘Public interest’ is a broad concept that is flexible enough to respond to the facts and circumstances of any particular case. Given that privacy is fact and context specific, it is appropriate to keep concepts such as ‘public interest’ broad and flexible.^[29]

9.43       Alternatively, broad concepts which go to the meaning of public interest could go in the objects section or the preamble of the Act.

Which public interests should be listed?

9.44       The ALRC recommends that the Act set out public interest matters that are both important and that might sometimes conflict with privacy interests. The list should include: freedom of expression, freedom of the media, the proper administration of government, open justice, public health and safety, national security, and the prevention and detection of crime and fraud. Freedom of expression and freedom of the media are perhaps the interests that will most commonly conflict with a privacy interest, so these are discussed further below.

9.45       Many of these matters are also referred to in the list of exceptions to the right to respect for private and family life in art 8 of the European Convention on Human Rights. Article 8 provides that there should be no interference by a public authority with the exercise of this right:

except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.^[30]

9.46       The following section discusses two public interests that may sometimes conflict with privacy.

Freedom of expression

9.47       The public interests that will perhaps most commonly conflict with privacy are freedom of expression and freedom of the media.^[31]

9.48       The vital importance of free speech and free expression is of course now rarely seriously disputed in democratic countries, and the subject of a vast legal and philosophical literature. Article 19 of the International Covenant on Civil and Political Rights provides, in part:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.^[32]

9.49       Those who oppose the introduction of a new privacy tort commonly appeal to the fundamental right to freedom of expression, and argue that the tort will impede free speech and a free media. The ALRC is particularly concerned that the tort recommended in this Report does not have that effect. The public interest in freedom of speech and freedom of the press should be expressly recognised in an Act providing for a new privacy tort. This may be particularly important, given Australia has not enshrined a right to free speech in its law in the way other democracies have, such as the United States in the First Amendment to its Constitution, and the United Kingdom in its Human Rights Act 1988 (UK).

9.50       That it will sometimes be justified to limit free speech to protect people’s privacy is implicit in a tort for invasion of privacy. But the public interest in free speech should not easily be outweighed by privacy interests. Lord Hoffmann has said that

a freedom which is restricted to what judges think to be responsible or in the public interest is not freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible.^[33]

9.51       The public interest balancing exercise recommended in this chapter is designed to ensure that privacy interests give way to free speech, when this is in the public interest.

9.52       Nevertheless, freedom of speech is not absolute, and must be balanced against certain other public interests, including the public interest in privacy.^[34] Chief Justice Mason of the High Court of Australia said in Australian Capital Television v Commonwealth:

In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of ‘an ordered society’ or a ‘society organized under and controlled by law’. Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public.^[35]

9.53       When balancing an interest in privacy with a public interest in freedom of expression, the nature of the expression will be relevant. Not all speech is of equal value to the public. In Campbell, Baroness Hale said that there are ‘undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others’:

Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life.^[36]

9.54       Professor Eric Barendt has said that there are dangers in discriminating between more and less worthy speech, but ‘lines and distinctions have to be drawn, unless the privacy right is to be altogether eviscerated’.^[37]

9.55       The speech that is most privileged in Australian law is political communication. It is, to use Baroness Hale’s words, ‘top of the list’ of speech deserving protection, because it is crucial to any democracy. The Australian High Court has found that freedom of political communication is implied in the Australian Constitution. In Lange v ABC, the High Court said:

Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be ‘directly chosen by the people’ of the Commonwealth and the States, respectively. At federation, representative government was understood to mean a system of government where the people in free elections elected their representatives to the legislative chamber which occupies the most powerful position in the political system … Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation.^[38]

9.56       It is clear that political communication should be given considerable weight in the balancing exercise recommended by the ALRC. It may be that only rarely will the public interest in privacy outweigh the public interest in free and open political discourse. The ALRC recommends that the Act make clear that the public interest in political communication is to be given considerable weight in the balancing exercise, by including the words ‘political communication’ after ‘freedom of expression’ in the list of public interest matters. In any case, courts would no doubt give particular weight to political communication. Chief Justice French of the High Court has said that freedom of expression

can inform the construction and characterisation, for constitutional purposes, of Commonwealth statutes. It can also inform the construction of statutes generally and the construction of delegated legislation made in the purported exercise of statutory powers. As a consequence of its effect upon statutory construction, it may affect the scope of discretionary powers which involve the imposition of restrictions upon freedom of speech and expression.^[39]

9.57       What is political communication? In Theophanous v The Herald and Weekly Times, Mason CJ, Toohey and Gaudron JJ said that political discussion includes:

discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices.^[40]

9.58       The judges then quoted Barendt, who wrote that

‘political speech’ refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.^[41]

9.59       It should be noted, however, that even freedom of political communication is not absolute in Australia. Legislation will only be invalid on account of the freedom ‘where it so burdens the freedom that it may be taken to affect the system of government for which the Constitution provides and which depends for its existence upon the freedom’.^[42]

9.60       Politicians and others in public office are of course entitled to some degree of privacy. Not all invasions of the privacy of public figures can be characterised and justified as political speech. Much will depend on whether a particular communication can be properly characterised as political communication in the first place.

9.61       Other types of expression are of course also very important, and should sometimes not be restricted, even where the expression invades someone’s privacy. Stakeholders including the ABC, the Arts Law Centre and the National Association for the Visual Arts submitted that ‘artistic expression’ be specifically mentioned in the list of public interest matters.^[43] In discussing the relative merits of different types of speech, Baroness Hale also referred to the importance of intellectual, educational and artistic expression.^[44]

Freedom of the media

9.62       The ALRC recommends that the list of public interests should include the freedom of the media to investigate, and inform and comment on matters of public concern and importance. This is intended to highlight the vital public interest in responsible journalism on matters of genuine public interest. In his book on freedom of speech, Barendt wrote:

The media provide readers, listeners, and viewers with information and that range of ideas and opinion which enables them to participate actively in a political democracy. Put shortly, the media perform a vital role as the ‘public watchdog’. As the ‘eyes and ears of the general public’ they investigate and report the abuse of power. So the argument from democracy, overall the most persuasive rationale for the free speech principle, justifies the coverage of mass media communications.^[45]

9.63       However, the public interest in a free press will not justify all invasions of privacy. In fact, invasions of privacy by the media may sometimes be harder to justify than a similar invasion by someone else, because of the harm that might come from the greater publicity. Barendt has written that ‘[m]edia gossip is quite different in its impact from village gossip’:

I do not suggest that the argument for a free press and media is not a strong one, or that it is not entitled to great weight in privacy as in other civil and criminal proceedings. But press freedom is parasitic to some extent on the underlying free speech rights and interests of readers and listeners, and the role which the press and other media play in informing them. It is not the same as a free speech argument, and that should be borne in mind when we consider how much weight should be attached to the freedom when it conflicts with the right to privacy which certainly is a fundamental human right.^[46]

9.64       It is sometimes argued that, because freedom of speech and the media is so fundamental to democracy, anything that limits the media is necessarily harmful to democracy. However, modern day media organisations have a very wide spectrum of activities and interests. On the same website on which may be found news and analysis of important political and social matters, may often be found photos of celebrities at the beach. Publishing such photos may be justified on some grounds, but hardly in the name of democracy. Courts when balancing a person’s privacy interests with the public interest should naturally give relatively little weight to a newspaper’s interest in publishing entertaining gossip, but considerable weight to the importance of newspapers publishing material on matters of genuine public concern.^[47]

Other matters

9.65       Other matters that should be included in the non-exhaustive list of public interest matters are: the proper administration of government; open justice; public health and safety; national security; and the prevention and detection of crime and fraud.

9.66       These matters attracted relatively little comment in submissions to the Discussion Paper. Some stakeholders said that the ‘proper administration of government’ is too broad’.^[48] The UNSW Cyberspace Law and Policy Community said that proper administration should ‘privilege key personal rights and interests such as privacy over mere administrative convenience’.^[49] The National Archives suggested instead: ‘the proper administration of government including administrative responsibilities pursuant to any laws’.^[50]

9.67       The ABC and the Law Institute of Victoria questioned whether ‘national security’ should be included, considering that invasions of privacy necessary for national security would be protected by the separate defence for ‘lawful activity’.^[51]

9.68       Guardian News and Media Limited and Guardian Australia also expressed concern about ‘national security’ and ‘economic wellbeing of the country’:

While these are clearly important public interests, it is important to ensure that their recognition in this context does not permit avoidance by governments of other laws which require appropriate processes, such as the obtaining of valid search or surveillance warrants by police, to protect privacy and guard the important protections provided by due process. ^[52]

9.69       In the Discussion Paper, the ALRC included in the proposed list of public interest matters, ‘the economic wellbeing of the country’. Although no doubt this will sometimes be a public interest, it is perhaps too general, and therefore unhelpful, to include in the list.^[53]

9.70       The Australian Privacy Foundation expressed concern about the ‘excessive generality, scope and difficulty in definition of matters particularly around administration of government, the economic wellbeing of the country, and the defence of “legal authority”. These are not appropriate or appropriately narrowly limited, and so could seriously undermine the effectiveness of the proposed cause of action’.^[54]

9.71       Telstra submitted, with respect to ‘national security’ and ‘the prevention and detection of crime and fraud’, that they ‘should be extended to include all law enforcement activities, for example investigation, prevention, detection and prosecution of crime and fraud’.^[55] Telstra also said that ‘the protection of public revenue could also be considered’.^[56]

Private interests

9.72       In the Discussion Paper, the ALRC proposed that a court should be satisfied that ‘the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest’.^[57] However, the ALRC now recommends that the focus be on balancing the public interest in privacy with any countervailing public interests. Privacy is not merely a private interest, but also an important public interest.^[58] The private interests of the parties, such as in privacy or free expression, will generally reflect the broader public interests at stake. But the focus of this element of the tort should be on the public interest—the question of whether this type of invasion of privacy may be justified on public interest grounds.