Unleashing the lawyers is not the answer to the question of privacy

Privacy is a fickle thing. Sometimes it's obvious, sometimes it's not, sometimes it's questionable.

There has been no outcry that the privacy of three Pakistani cricketers was invaded when the now defunct News of the World caught them, by secret cameras, in their hotel room stashing bribes.

We accept that investigative journalism can go so far to seek out corruption.

But as the parents of murder victim Milly Dowler give evidence to the parliamentary inquiry in London about the impact of the phone hacking for the News of the World, we in Australia are asking ourselves what is the best way for us to outlaw conduct which falls on the wrong side of the line.

The easy response is to say we should legislate to create a statutory action for breach of privacy, and Home Affairs Minister Brendan O'Connor has called for submissions in response to an issues paper on proposals for such an action.

But let's just think a bit more about that. Is such an action the best way or even necessary to remedy the mischief? Perhaps not. Tragically, Milly had probably been murdered by the time her phone was hacked. All current proposals for a statutory action recommend that it benefit only living persons, and that the action will not survive for the benefit of her estate.

That is sensible given that the wrong is essentially a personal one. Could her parents sue for an invasion of their privacy when their daughter's phone was hacked? Possibly it would come within the form of action recommended by the Australian Law Reform Commission as an invasion of their privacy in their "family life".

But such a conclusion is not straightforward and it would be going too far to say that there should be an action for invasion of privacy whenever a journalist investigates a missing person or interferes with a phone belonging to a relative.

So if what we are really complaining about is the phone hacking itself, let's remedy that.

In fact, we already have: under a federal statute of 1979, it has been an indictable offence punishable by imprisonment of up to two years to intercept a telecommunication or to communicate intercepted information.

Introducing an earlier act in 1960, Sir Garfield Barwick described it as making Australians comfortable in the knowledge that there will not be any intrusion in their privacy unless their telephone usage threatened national security.

Equally, if our complaint is that paparazzi or lone photographers stalk and harass Nicole Kidman or Naomi Watts when they are here on a private visit, or any other member of the community, let's remedy that.

It would be going too far to make taking a photograph of someone in an open public space a criminal offence or a civil tort. Sometimes, crass behaviour is merely in bad taste or unethical rather than unlawful. But there is undoubtedly a gap in our protection of individuals from conduct which amounts to harassment but which falls short of the common law tort of assault or would not justify the victim seeking an apprehended violence order.

Rather than bring an action for breach of privacy, Ting Lan Hong, the mother of Hugh Grant's baby, simply relied on the British Protection from Harassment Act (1997) to obtain an injunction last week against paparazzi stalking her and her home for photographs. This act provides a useful model for legislation targeting specific types of conduct, whether they occur outside one's home or in public spaces, in person or electronically.

The webcasting of secretly recorded sexual activities, as allegedly done by certain defence force recruits, illustrates the importance of existing legislation being updated and broadened to cover such examples of egregious breach of privacy.

It is absurd that in a country of this size, there are differing state laws governing the use of listening and surveillance devices. If uniformity could be achieved, there is an advantage in the simplicity and certainty of the protection they can provide to individuals against intrusion that a broad-based privacy action, with all the necessary balances for public interest, could never emulate or replace.

The proposals of the NSW, Australian and Victorian law reform bodies differ in some important respects. One issue is whether liability should be limited to intentional invasions of privacy or whether it should extend to negligent conduct.

While the current debate on privacy is essentially focused on the media, the proposed statutory actions would apply to anyone: the mind boggles at simple human errors like typing the wrong email address giving rise to a legal action.

Another issue is the range of remedies that might be available and particularly whether there should be a cap on the amount of damages that could be awarded.

Tort reform around Australia in the last decade prevents many innocent victims of negligently inflicted personal injuries from receiving any compensation whatsoever for the distress caused. If they are subject to thresholds and caps, so too should victims of breach of privacy.

Only serious invasions of genuine rights to privacy should be actionable at all. Anything less is the price of a crowded, open and free society.

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Barbara McDonald is a professor of law at the University of Sydney. She is a member of the editorial board of the Torts Law Journal.

Provided by University of Sydney