Sooner or later there will be a tort of privacy in Australia and the media might as well get used to the idea.

Long before the phone-hacking scandal that has engulfed News International, the London Metropolitan Police and the British Prime Minister, David Cameron, the courts of law in Australia, New Zealand and Britain had shown that there was legal momentum towards a right to sue for breach of privacy.

The evidence from last week’s events in Canberra suggests that this legal momentum might soon be augmented by political momentum.

The legal momentum can be felt from judgments in the High Court of Australia, the New Zealand Court of Appeal, the House of Lords, and the County Court of Victoria.

In 2001, in ABC v Lenah Game Meats, the-then Chief Justice of the High Court, Justice Murray Gleeson, stated:

“The foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity.”

He then formulated a test of what is private:

“Disclosure or observation of information or conduct [which] would be highly offensive to a reasonable person of ordinary sensibilities is in many cases a useful practical test of what is private.”

In 2004, in Hosking v Runting, the New Zealand Court of Appeal recognised a tort of public disclosure of private facts. While narrower than a general tort of privacy, it is moving in the same direction.

Also in 2004, in a case brought by the model Naomi Campbell against Mirror Newspapers in Britain, the House of Lords broadened the circumstances in which breach of confidence may arise, from those in which there had to be a pre-existing confidential relationship between the parties to those in which a duty of confidence arises whenever a person receives information who knows or ought to know is fairly and reasonably to be regarded as confidential.

Theirs was a split decision, but individually the Law Lords made some pertinent observations:

  • Details about an individual’s private life would, in today’s language, be called private, not confidential.
  • The essence of the wrong done by a breach of confidence about an individual’s private life is better encapsulated now as misuse of private information. In the case of individuals, this affords protection for individual privacy.

Then in 2007 a woman known publicly only as Jane Doe successfully sued the ABC for, among other things, breach of privacy by broadcasting material that identified her as a victim of r-pe.

Judge Felicity Hampel, in the County Court of Victoria, found that the material in the broadcasts fitted Murray Gleeson’s test of what was private, because not only was it about s-xual activity but about non-consensual s-xual activity, which, if anything, made it more worthy of private status. She found for Jane Doe on all counts, including breach of privacy, and awarded damages of $234,190 against the ABC.

After some deliberation, the ABC did not appeal.

Now comes the political momentum generated by public outrage at the phone hacking by News International.

The resultant weakening of Rupert Murdoch’s power in Britain seems to have emboldened the Australian political class, long cowed by fear of falling foul of News Limited newspapers in Australia.

In this newly liberated atmosphere, the federal government has announced that it will consider introducing legislation giving people the right to sue for privacy.

Unfortunately, politicians from various sides have muddied the argument by dragging into it issues concerning bias, concentration of media ownership, and intimidation of the media. The risk here is that the public debate loses focus on the core issue.

The core issue is how to balance the right of free speech with the right of people to have their privacy protected from wrongful invasion.

Our laws already strike a similar balance between the right of free speech and the right of people to have their reputations protected from wrongful damage.

These laws contain a public-interest test and several defences that allow the media to damage people’s reputation when it is justified — for example by exposing serious wrongdoing.

This is a useful model. There will be times when the media are justified in breaching someone’s privacy because it is in the public interest to do so.

However, the public interest is not the same as public curiosity. The public interest involves material that is likely to affect the welfare of the public, the public’s choices as citizens, or their capacity to participate as citizens in the life of the community.

This is a high threshold and does not protect disclosure of private material that merely panders to prurient curiosity.

A public policy approach that involves identifying specific wrongs and providing redress against them allows a calibrated response to problems such as this. It does not involve imposing broad-brush prohibitions on the media of a kind that would be inconsistent with the freedoms essential to the proper functioning of a liberal democracy.

It is also preferable in a liberal democracy to have laws made by Parliament where there is an opportunity for a broad debate grounded in the values our society considers important. But the signs are that if Parliament doesn’t do it, the courts soon will.

*Dr Denis Muller teaches media ethics at Swinburne University and is a Visiting Fellow in the Centre for Public Policy at the University of Melbourne.