‘Whole new battleground’: The Privacy Act Review Report and its impact on media lawyers

In February, after two years of extensive consultation, the Federal Government released the Privacy Act Review Report, containing 116 proposals for reforming the Privacy Act 1988.  

Attorney General Mark Dreyfus said the proposed changes are designed to “modernise Australian privacy law” and “strengthen the control individuals have over their information”.  In particular, he said, the review highlighted the vulnerability of people’s information in the digital age.  

The Report recommends the introduction of a statutory tort of serious invasions of privacy that are “intentional or reckless”. Crucially, the Report states that the invasion “need not cause actual damage” and individuals may claim damage for emotional distress. Further, it suggests that the Office of the Australian Information Commissioner be able to appear as a friend to the court and intervene in proceedings. 

“A detrimental impact on freedom of expression” 

Many submissions supported introducing a statutory tort, including academics, the Law Council of Australia and privacy and consumer advocates. Others expressed caution about its operation and submitted that it would require exceptions.  

Media lawyer Jake Blundell, a senior associate at Banki Haddock Fiora, told LSJ that these moves are causing concern amongst his clients, who believe the existing legislation is fit for purpose.  

Australia’s Right to Know (ARTK) coalition, a group of major media organisations (including News Corp Australia, Nine and the ABC), staunchly opposes the recommendation to introduce a new statutory tort for serious invasions of privacy, saying the change will have a “detrimental impact on freedom of expression” and undermine news reporting.   

Blundell, who represents some ARTK publishers, also said the changes have the potential to further complicate matters for solicitors working in this space.  

“There is already a lot of defamation litigation against the media, and other statutory reporting restrictions. There are lots of things journalists can’t write about. In NSW, there are over 100 different provisions across a whole lot of different Acts,” Blundell said. 

“It is very difficult to know what is out there in terms of restricting the type of information that can be published about people. There are non-publication and suppression orders in relation to court proceedings. There is clearly a concern from the media that if we establish a new tort of serious invasions of privacy, on top of our very plaintiff friendly defamation laws, we will have this whole new round of litigation that will effectively have a chilling effect on public interest journalism. 

“Privacy is a right, so we need to balance those rights against the right to freedom of expression. But how do we best do that? We already have some protections in place under the Privacy Act, as well as protections under the Surveillance Devices Act in NSW about making records of conversations. We have the Online Safety Act that gives remedies for when certain types of material are posted online. 

“Plus, we are about to launch into stage two of the defamation reforms, which will very likely create a new mechanism by which people can have things taken down from online publications and social media.” 

Further, Blundell said the proposed tort sets up an opportunity for people to go to court, and have orders made including injunctions and compensation.  

“The Privacy Act is more about the use of storage and the collection of data, and having policies that relate to how you do those things including obtaining consent. It is a different focus to what is being proposed here,” he said. 

“The full range of remedy available to a court is not available under the Act. It’s much more limited. This is what has got journalists concerned. Presumably this serious invasion of privacy tort wouldn’t enjoy an exemption in relation to journalism for that, because that would undermine the purpose of it.”