Allens

Privacy & Data Protection

Focus: Privacy – October 2004

A common law right to privacy for Australia?

In brief: Recent overseas court decisions point to the emergence of a new common law right to privacy. Articled Clerk Maree Norton, Special Counsel Karin Clark and Partner Katherine Sainty report on the potential implications for Australian organisations, particularly media organisations.

Background

Since December 2001, 'privacy law' in Australia has been almost synonymous with the National Privacy Principles, which regulate the handling of personal information by the private sector. This perspective has tended to ignore other sources of privacy obligations, including increasing privacy regulation by state and territory governments, and the binding nature of representations that organisations make in privacy policies and statements.

Recent decisions by overseas courts point to yet another potential source of privacy obligations, should Australian courts decide to follow their lead.

In the seminal Australian case regarding common law privacy rights, Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1, the High Court refrained from recognising a separate right to privacy, but left open the possibility of a new tort of invasion of privacy.

Since then, decisions in three key overseas jurisdictions have supported the development of a privacy right and therefore made it more likely that, if the opportunity arises, senior Australian courts will pick up where Lenah left off. As will be apparent from the brief overview below, the approaches of overseas courts have been quite diverse. Perhaps the most interesting question of all is not if, but how, Australian courts will approach privacy protection, and the practical implications that this will have, particularly for media organisations.

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United Kingdom

The House of Lords recently held that the publication of articles detailing Naomi Campbell exiting a Narcotics Anonymous meeting (with associated photos) was actionable as a breach of confidence (Campbell v Mirror Group Newspapers [2004] UKHL 22). It was notable that the fact that Ms Campbell was a celebrity, and that the pictures were taken in a public place, did not prevent her from being successful because the information disclosed (about her health and treatment for ill health) was considered private in nature. In arriving at their decision, the judges had to consider the European Convention on Human Rights (which has been incorporated into English domestic law by statute) and balance the right to respect of private life (Article 8) with the right to freedom of expression (Article 10).

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New Zealand

In Hosking v Runting and others (2004) CA 101/03, the New Zealand Court of Appeal recognised a new tort of privacy with two fundamental requirements: (i) the action must relate to facts for which a 'reasonable expectation of privacy' existed; and (ii) the publicity given to those private facts must be considered highly offensive to an objective reasonable person. These elements echo the requirements of the (long established) tort of privacy in the United States. However, although US cases generally establish that there is no right to privacy if a person is photographed in public, two of the majority judges in the NZ case indicated that in exceptional cases, a person might be entitled to restrain additional publicity being given to the fact that they were present in a public place (such as a street).

The majority in this case took the more radical step of establishing the existence of a new tort, rather than following the House of Lords' approach and extending the action of breach of confidence. Nevertheless, the NZ decision, at least in some respects, probably provides less privacy protection to individuals than the UK decision, because of recognition by the judges that 'public figures' must necessarily expect less privacy than other members of society. In this case, the action regarding publication of photographs of the children of a celebrity couple ultimately failed.

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European Court of Human Rights

The approach of the European Court of Human Rights in Von Hannover v Germany (2004), application number 59320/00, is the most plaintiff-friendly of the three decisions and represents a significant expansion of the privacy protection available to public figures in public places. The court held that the publication of photographs of Princess Caroline of Monaco going about her everyday life (shopping, playing tennis etc) was in breach of her right to privacy. The court appeared to regard the term 'private' as describing all those aspects or activities of a person's life that do not relate to their official duties (regardless of whether or not the activities take place in public).

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Implications for Australian businesses

If Australian courts decide to provide litigants with privacy protection in the near future, they will have a number of overseas approaches to consider, including the 'free standing' tort of privacy (as recognised in the US and NZ) and the UK extension of the law of breach of confidence (but without the need to consider the impact of the European Convention on Human Rights).

Whatever approach is taken, businesses in Australia must carefully consider the extent to which any such judge-made law might prompt challenges to their practices, particularly where these are currently not subject to statutory regulation (for example, the practices of many small businesses and the journalistic practices of media organisations, as well as the use of certain employee records, presently enjoy exemptions under the Privacy Act).

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More immediate issues for online publishers

The overseas cases also give rise to more immediate concerns for publishers of online material. Given that such material can be downloaded around the world, online publishers must be mindful that the publication of material that may not give rise to an actionable right of privacy in Australia may nevertheless give rise to such actions in other jurisdictions where the material is downloaded.

The High Court decision in Dow Jones & Company Inc v Gutnick (2002) 193 ALR 449 suggests that the appropriate forum for commencing a defamation action stemming from an online publication is the jurisdiction in which the material is downloaded, not the jurisdiction in which it is uploaded. Although this case did not relate to privacy proceedings, Justice Kirby discussed the need for conflict of laws rules to adapt to challenges thrown up by the advent of the Internet.

Hence, if an overseas court decides that the place where online information is accessed is also the appropriate place for privacy proceedings to be commenced, an Australian publisher of material that breaches an individual's privacy in another jurisdiction might have an action successfully brought against them in that jurisdiction. In short, before publishing pictures of celebrity smooches or stoushes online (or any other material that could be actionable in other jurisdictions), Australian publishers must consider recent developments in overseas courts that have significantly increased protection for the privacy of individuals.

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