In a commentary piece published in Australia’s leading online media law publication, partner and head of our media practice Peter Bartlett argues that Australia already has laws to protect serious invasions of privacy and warns against the effect on reporting that a statutory right to privacy would have. He writes: 

The reality is that Australia has many laws that already protect an individual’s right to privacy. This is in a multitude of areas including telecommunications, surveillance, data protection, children, victims of sexual assaults, family court matters, medical records, stalking, trespass and many more.

Furthermore, radio and television broadcasters have codes of conduct that contain privacy obligations. These are required under the Broadcasting Services Act and are regulated by the Australian Communications and Media Authority.

For the ALRC to argue that there are gaps in these laws is unconvincing; the existing legal framework is more than capable of protecting individuals in appropriate circumstances. The ALRC also fails to recognise that invasions of privacy are not such a big issue in Australia as they are in the United Kingdom or the United States.

It is important to keep in mind that privacy developments overseas come on the back of the phone hacking scandal in the UK. Media culture is remarkably different in Australia and there is no evidence of such outrageous behaviour occurring here.

While Australia has seen a number of high profile and improper things being published they are few and far between. The number of complaints to the Australian Press Council and the Australian Communications and Media Authority and the number of court cases related to breach of privacy simply do not justify the introduction of such a far-reaching claim.

As a UK Parliamentary Committee found last year: “The concepts of privacy and public interest are not set in stone and evolve over time. We can conclude that the current approach where judges balance the evidence and make a judgment on a case-by-case basis, provides the best mechanism for balancing privacy and freedom of speech rights.”

The Committee noted quite correctly, that these rights are equally important and that the courts can apply the balancing acts on a case-by-case basis.

The ALRC discussion paper recommendations are likely to lead to many legal actions against the media. There is little doubt that this would have a chilling effect on the media. It will not protect the interests of a vast number of Australians who would not take action and incur significant legal costs.

Such legislation would upset the present balance between freedom of speech and a person’s rights to privacy. Thus any extension of the right to sue for a breach of privacy should be left to the court.

The courts are best placed to balance the interests of privacy and freedom of speech in any given situation. If the Australian government was to accept the recommendations of the ALRC it would be like cracking a nut – a small nut – with a sledgehammer.