Look who's watching: Privacy Protection in Australia & the UK...

Story by: Wenee Yap
November 12, 2007

(For portfolio use only - original available here)

Celebrity weddings were never going to be a private affair. Call it our voyeuristic thirst to live vicariously the resplendent lifestyles of the cashed-up and well-publicized - but our hunger to know about the private lives of public figures has made the industry of fame a lucrative venture, particularly for paparazzi and trash magazines. So when Michael Douglas and Catherine Zeta-Jones exchanged vows, in a Hollywood matrimonial quid pro quo to end all nuptial opulence, they sought to guard against paparazzi invasions of their wedding by signing a contract with OK! magazine, giving the tabloid exclusive photos of the Douglas's tying the knot. But the paparazzi are like sand - no matter what you do, some grains will slip through. OK!'s rival magazine, Hello! acquired unauthorised shots of the event and rushed them to publication ahead of OK!'s official and authorised photos. You know what's coming next - a lawsuit claiming, amongst other grievances, a wrongful invasion of privacy.

The case of Douglas v Hello! Ltd [2006] threw privacy law into the spotlight. Dr David Rolph of the University of Sydney observed its importance in a seminar on a comparative study of privacy protection in the United Kingdom and Australia, as part of the UTS:LAW's Lunchtime Seminar Series. Both jurisdictions, he noted, have been without a tort of privacy. Yet in this case, Dr Rolph highlighted a "fairly frank admission by the minority" that the equitable action for breach of confidence, traditionally confined to commercially-based breaches of confidence, had been expanded to include a second distinct action: "a form of personal privacy action separate from commercial confidence."

Closer to home, the High Court in the landmark case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) suggested "in some tantalising dicta, that there might be a tort of privacy recognised in Australian law," said Dr Rolph. Venturing one step further, Dr Rolph said that if a tort privacy was recognised, "it would be for the benefit of natural persons" not corporations - a view much in line with the notion of privacy as an individual human right.

Should Australia recognise a tort of privacy? If so, will it be by statute, developed by common law or a combination of the two? With the advent of intrusive and freely available surveillance technology like Google Earth, and the capacity for swift mass proliferation of personal information via internet sites such as Facebook, this is a vital issue. Both the New South Wales Law Reform Commission and the Australian Law Reform Commission have thrown their resources into two major papers on the thorny subject of privacy law. Both, said Dr Rolph, have suggested a relatively "open textured" statutory protection of privacy, affording courts the flexibility of interpreting the proposed legislation in a way best suited to ensuring justice is delivered to all parties, depending on the facts of a given case.

Not to be outdone, district and county courts in Queensland and Victoria have recognised an actionable right to privacy, with the judgment in the 2003 Queensland case, which involved a pesky ex-lover turned stalker, offering four essential elements for a common law tort of privacy to be proved.

"The impetus of privacy protection in the UK is celebrities," observed Dr Rolph. By contrast, the push for a tort of privacy in Australia "is coming from genuinely private parties - people without a significant public profile," said Dr Rolph. "If you pop your head above the parapet and you court publicity, but claim to need your privacy protected, it raises the question: how do you balance freedom of expression against a right to privacy?"