Submission by Commercial Radio Australia

Issues Paper

A Proposed Commonwealth Statutory

Cause of Action

for Serious Invasion of Privacy

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SUBMISSION BY COMMERCIAL RADIO AUSTRALIA

Introduction

1. Commercial Radio Australia (CRA) welcomes the opportunity to comment on the Issues Paper dated September 2011 relating to a proposed Commonwealth Statutory Cause of Action for Serious Invasion of Privacy.

2. CRA is the peak national industry body for Australian commercial radio stations. CRA has

260 members and represents approximately 99% of the commercial radio broadcasting industry in Australia.

3. In this submission CRA provides an Executive Summary, followed by consideration of the underlying policy issues.

Executive Summary

4. CRA strongly opposes the proposed cause of action for serious invasion of privacy.

5. The case for a statutory cause of action for serious invasion of privacy is very weak. Abuses of privacy by Government and business, which are the major concern of most people, are already addressed by the Privacy Act. A plethora of other legislation addresses other key privacy related concerns, such as hacking, SPAM, telecommunications, mail-tampering and unauthorised use of records and data. For example, phone hacking of the kind carried out in the UK is illegal in Australia (as it is in the UK).

6. All of the proposed statutory tests for privacy would introduce a great deal of uncertainty into the law. CRA is also of the view that a general statutory test would provide less clarity than the common law (if the Australian courts developed a tort of privacy). This is because the common law can develop and adapt incrementally, whereas a general law is likely to have many unintended consequences.

7. There are enormous ethnic, cultural and religious differences across Australia. There are also issues such as consent, context and public interest, which involve difficult and subjective questions of degree and judgement, in the area of privacy. Views about what causes high offence, serious offence or substantial offence vary greatly, as do the attributes of a person of “ordinary sensibilities”. As a simple example, some people of ordinary sensibilities would regard publication of photographs of a private social event as offensive, and even highly offensive, while others would not. Furthermore, it is difficult to see how a privacy law would operate in relation to the “Facebook” generation, where thousands of “risqué” photographs and other material are posted every day without consent. In this area

the privacy horse has well and truly bolted.

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8. Commercial radio, along with other media, has very effective codes regulating privacy, which are subject to oversight by the Australian Communications and Media Authority (ACMA) and are based on very extensive public consultation.

9. Any future privacy law should contain a full exemption for media activities, such as the journalism exemption now found in the Privacy Act, which recognises the role of media codes of practice.

10. A media defence must not involve tests of public interest, reasonableness and similar shades of grey, which will create great uncertainty. An uncertain privacy risk will either be uninsurable or insurable only at great cost. That would greatly add to the operating costs and other impacts on traditional media such as radio, at a time of internet and other new media threats.

11. The fact that some other jurisdictions have privacy laws is not of itself a justification for a new law in Australia. Many of those jurisdictions have other media protections not present in Australia, such as the US protections of freedom of speech and of the press, which provide far stronger media defences than anything that exists in Australia.

12. In answer to specific questions asked in the Paper:

o Is there a need for a statutory cause of action for serious invasion of privacy in

Australia? No- see above.

o What are the appropriate elements of a cause of action? All of the elements proposed involve a high degree of uncertainty, which will promote litigation and legal cost. If a statutory cause of action is to be introduced, legislation which addresses specific behaviours is preferable. Wide tests have unintended consequences and are difficult to apply to different ethnic, cultural and religious backgrounds.

o Should legislation specifically provide for a range of factors to be taken into account? While a factors test could provide useful guidance, CRA’s approach is that any law should address specific behaviours of concern.

o Should legislation list the types of invasion giving rise to a cause of action? While CRA believes that the case for a cause of action has not been established, an approach which identifies particular types of conduct is preferable to a cause of action which is “at large” and could have many unintended consequences.

o What are appropriate defences and exemptions? A clear media defence which does not require subjective judgements and tests is very important for the efficient functioning of media. None of the defences proposed by the various Law Reform reports do that.

o What remedies are appropriate? CRA is very concerned about the financial impact of any remedy, especially if aggregated as a class action. The question of financial

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redress therefore requires very careful consideration. For example, in many cases commercial radio stations are small businesses operating on low or even negative profit margins, which could be put out of business by a large financial claim.

o Should disputes be resolved without resort to litigation? Yes. Dispute resolution models used in related areas need to be considered.

o Should the cause of action be restricted to natural persons (that is, not companies etc)? Yes.

o Should the cause of action be restricted to living persons? Yes.

o What courts should have jurisdiction? Subject to alternative dispute resolution, a single court should have jurisdiction to ensure the development a unified and cohesive body of law.

Introduction

13. CRA welcomes the opportunity to discuss the questions raised in the Issues Paper, which raises some important questions and is a positive initiative by the Commonwealth. The Issues Paper provides the opportunity for a very healthy debate about privacy.

14. There is no doubt that Australians value their privacy. However, that value, in terms of both the meaning of privacy and its importance, varies greatly across the Australian community. By way of a simple example, a person of strict Muslim background may well regard a photograph of a woman’s face as a gross invasion of privacy, while most Australians would not. On the other hand, some Australians would regard publication of photographs of them in swimming costumes as an invasion of privacy, while others would not. By way of further example, most twenty-year old Facebook users would not regard the publication to the world (via Facebook) of photographs taken of them at a private social event as an invasion of privacy, while many older Australians might well do so. Equally, most parents will have very different views about the extent to which photographs of their children should be available to the public, depending on the age of the child and the cultural background of the family. While the paper proposes that privacy be tested against a notional person of ordinary sensibility, the reality is that in modern Australia, such a person does not exist and would need to be artificially constructed.

15. The lack of consensus (let alone unanimity) around what constitutes an invasion of privacy suggests that lawmakers should tread very carefully in this area.

The threshold question: Is a new cause of action warranted?

16. The threshold question is whether the case for a privacy cause of action has been

established. In CRA’s submission, this involves consideration of four key issues:

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· What are the major privacy concerns on which most Australians would agree, irrespective of age, sexuality, cultural and religious background and ethnic differences?

· To what extent are these concerns addressed by existing laws?

· Is the gap between existing laws and the broadly agreed concerns, combined with the strength of concern, of sufficient concern to justify legislative intervention?

· If so, is legislative intervention possible in an efficient manner, which does not have countervailing detrimental effects such as uncertainty, unintended consequences, unreasonable cost and inefficiencies for the Australian community (including but not limited to Australian businesses)?

17. As to the first issue, in CRA’s submission the core areas on which most Australians would agree are of privacy concern are misuse of data and personal information by Government and business, confidentiality and integrity of communications and personal records and privacy-related threats to personal security such as stalking. There are other privacy issues on which a substantial proportion of Australians might have privacy concerns, but they are very unlikely to have majority consensus.

18. As to the second issue, the areas on which most Australians would have a consensus regarding privacy concerns are generally already regulated, and in some cases heavily regulated. Use of data, records and personal information is already regulated by the Privacy Act. This legislation works well and addresses those concerns. As to the integrity of communications and data, Australia already has a plethora of legislation dealing with those issues. This includes legislation prohibiting telephone interception, computer hacking, mail tampering and similar practices (as well as the Privacy Act and the SPAM Act). The law of confidentiality also protects confidential communications (as it does confidential

information such as sensitive personal records). The third likely area of common concern is privacy-related personal security. This is also an area in which there is a plethora of legislation. For example, most States have anti-stalking laws and other legislation which protects personal security in a variety of contexts, including prohibitions on use of listening devices, voyeurism, unauthorised installation of filming devices and identity theft. As an example, in New South Wales specific offences dealing with these practices can be found in Part 6 of the Crimes Act (dealing with computer offences), Division 15B of Part 3 of the Crimes Act (dealing with voyeurism and related offences) and the Listening Devices Act. All

States have similar legislation. While it is true that these criminal laws do not always provide a compensatory mechanism, there is provision for compensation under the Privacy Act. In addition, for reasons which appear below, CRA believes that the legislature should be very cautious about superimposing general compensatory rights in relation to conduct which already carries very substantial criminal sanctions.

19. In summary, the law already prohibits most if not all conduct which Australians of any background would generally agree involve unacceptable invasions of privacy. Where those take place at the level of Government or business, compensation is already available under the Privacy Act. In all other cases, criminal sanctions represent a far more powerful deterrent than a compensatory mechanism. The case for a general privacy tort is therefore very weak. In that regard CRA does not accept the “gap-filling” argument, that a general statutory tort would address areas that are not specifically addressed by existing legislation. The problem with this argument is that no clear gaps, on which the majority of Australians would have a consensus that there is an obvious need to legislate, have been identified.

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Most discussion about “gaps” concentrates on the limitations of existing mechanisms,

without clearly articulating the unaddressed need that requires legislative action.

20. Furthermore, a statutory cause of action which is of a general nature could have very wide- ranging consequences. There is a strong risk that as well as addressing gaps (if they are found), a statutory cause of action might also affect behaviours which were not intended to be covered, or in relation to which, there is no general community consensus.

21. CRA therefore submits that a case for a new statutory tort has not been established.

Nevertheless, CRA has addressed the further questions posed by the Issues Paper, regarding the nature of any new law, if one was to be enacted.

Statutory Cause of Action or Common Law development?

22. In CRA’s submission the arguments for establishing legal certainty through a statutory cause of action are also not compelling. This is borne out by the statutory tests proposed, which create great uncertainty and in CRA’s submission, will often be unworkable in practice (as to which, see further below). The common law has the advantage of incremental development, which can take into account and distinguish between a variety of circumstances and fact situations. On the other hand, the creation of a statutory cause of action is something of a broad sword, not easily adjusted and adapted to a wide variety of differing circumstances. This issue is further addressed below, in relation to the statutory tests proposed.

Elements of cause of action

23. The great many problems which attend a statutory cause of action appear starkly, when the tests for the proposed cause of action are considered. These are variously:

· An invasion of privacy that would be highly offensive to a person of ordinary sensibilities

· An invasion of privacy sufficiently serious to cause substantial offence

· Various public interest tests and/or defences which would justify the invasion of privacy; and

· The question of fault or intentionality.

24. The tests to determine whether there is an invasion of privacy are deeply problematic. As we have noted above, there is no person of ordinary sensibility in relation to questions of privacy, because issues of privacy are deeply personal and cultural. It is not possible to posit a notional person of ordinary sensibilities except with great difficulty and intellectual artifice.

25. The simple example of publication of photographs without consent is a case in point. There is likely to a splintering of views within the community on this question, with little consensus, especially when related issues such as context, degree of dress or undress, whether the setting is private or public, and other factors are taken into account. Yet this is

a relatively simple issue. More complicated privacy issues are likely to cause an even greater divergence of views. Many young Facebook users are likely to find inter-peer publication of very personal material perfectly reasonable, which would horrify a middle-aged person, let alone an elderly person. To determine what is offensive or highly offensive in a Facebook context is an almost impossible task, especially for a judge who in many cases will be wholly unfamiliar with the technology and more importantly, the Facebook “culture”. The law must operate on the basis of broad consensus and none is apparent in this area.