The privacy proposal that could suppress unflattering but true stories
Business titans and politicians would be given a new avenue to suppress unflattering but true stories on what courts deem their personal lives under proposal to let Australians sue over privacy breach claims.
The proposal, part the Attorney-General’s Department review of the Privacy Act delivered last week, is designed to protect Australians from online and physical intrusions into their personal lives.
It would allow Australians to sue if someone reported on the leaked contents of a personal email or intrusive photograph or any other serious “misuse” of private information. This has been recommended before but not legislated in Australia. The courts would have to take the “public interest” into account but whether a news story was accurate would not factor into the claim.
Overseas, a host of wealthy celebrities, sportspeople and business figures have used privacy claims to stop reporting on their personal affairs and drug issues. The full scale of these cases, especially in the United Kingdom, is unknown because the courts can issue legal orders preventing any reporting on the privacy case.
In one case, a former chief executive of the Royal Bank of Scotland used a privacy claim to suppress details of his affair with a subordinate in the lead-up to the bank’s collapse during the global financial crisis. Partial details of Fred Goodwin’s affair became public only after British MPs scrutinising the £45 billion ($79 billion) in public money used to bail out the bank made the rare decision to use parliamentary privilege to get around the court’s ban and name him.
Veteran media lawyer Peter Bartlett, who acts for this masthead, said those most likely to take privacy claims to the court were people who could afford to hire top lawyers. “So it’s more likely to be the wealthy and the politicians,” said Bartlett, a partner at Minter Ellison.
A spokeswoman for Attorney-General Mark Dreyfus said the government was seeking feedback on the review’s proposals before deciding action to update privacy laws.
“Strong privacy laws are essential to Australians’ trust and confidence in the digital economy and digital services provided by government and industry,” the spokeswoman said. “However, it is clear Australia’s privacy laws have not kept pace with the changes in the digital world.”
The Attorney-General’s Department argued in the review that the privacy tort would fix gaps in current state and federal law.
But media organisations disputed that, with submissions to the review from The Guardian Australia warning it could have a “chilling effect” on public interest journalism and the ABC saying it was unnecessary.
Nine publishing boss James Chessell, who oversees The Sydney Morning Herald and The Age, said: “We look forward to getting into the detail of the report and working constructively with the government to ensure any potential unintended consequences contained in the proposals are addressed.”
In one of the highest profile US privacy cases, the evangelical Christian, reality TV star and former wrestler Hulk Hogan sued a media outlet called Gawker into bankruptcy after it published a leaked video of Hogan having sex with a friend’s wife in a consensual arrangement.
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