The Media Entertainment and Arts Alliance (MEAA) is concerned that potential changes to legislation allowing victims of privacy invasion the right to sue will detrimentally affect the scope of legitimate media to report on stories of public concern.
Victims of privacy invasion in NSW could have the right commence civil actions if recommendations by The Standing Committee on Law and Justice are adopted.
While the recommendation is targeting distributors of intimate images taken and published without the subject’s consent – referred to commonly as ‘revenge pornography’ – if the law is changed it could also encompass the work of journalists.
The MEAA will make a formal submission to the committee following the release of its recommendation report.
MEAA CEO Paul Murphy: Union is against mooted changes
MEAA CEO Paul Murphy told Mumbrella: “We will be making a formal submission, along with other media organisations, in response to the recommendations because we were part of a joint-submission from the Right to Know Coalition to the original enquiry – which basically said we didn’t believe there were grounds for legislative change in this area.
“We thought there were already available quite equitable actions for breach of confidence under common law and that was appropriate.
“We don’t think it is the intention of this process in any way to limit the ability of media organisations to report, but we’re concerned there could be unintended consequences in a legislative approach in this area.”
Murphy said mooted changes “may leave” media outlets and journalists more open to being sued over perceived privacy breaches.
A key focus of the recommendations would see privacy laws cover technology-facilitated privacy abuse, such as drones and other surveillance devices, as well as breaches of databases that capture large quantities of personal information.
The recommendation report stated:”The committee is significantly concerned by the growing trend of these activities, and the impact they have on the victims of such privacy breaches.”
The union’s comments follow on from it, joining with a number of media bodies, including Bauer Media Fairfax Media, News Corp Australia and West Australian News, outlining their position against the changes in a formal submission issued to the Standing Committee on Law and Justice, in September 2015.
The submission stated: “Media Organisations are concerned that if a new cause of action for serious invasions of privacy were to be introduced in NSW, it would have an unjustified adverse effect on the freedom of the media to seek out and disseminate information of public concern, and would place undue weight on an individual’s right to privacy at the expense of freedom of communication.”
The union argued against assertions that because the US and UK “have introduced a cause of action for serious invasions of privacy, Australia should follow suit” is not applicable in Australia as Australia “does not have a ‘counterbalancing’ statutory of right of freedom of communication or freedom of the media to seek out and disseminate information of public concern”.
The submission continued: “In the context of the current regulatory framework, media organisations are concerned that a statutory cause of action would simply encroach upon freedom of speech and stop reporting in the public interest.”
It concluded: “Media organisations do not support the introduction of legislation to broaden the scope of breach of confidence remedies for serious invasions of privacy.
“While very few cases of this nature have gone before the courts, the Australian development of equitable actions for breach of confidence was recognised by the Victoria Supreme Court of Appeal in Giller v Procopets and was recently affirmed by the WA Supreme Court in the decision of Wilson v Ferguson.
“In both cases, the cause of action was used to provide for monetary compensation for misuse of personal information. That case concerned precisely the set of circumstances foreshadowed by the Media Release to this inquiry and confirmed that the courts are open to awarding compensation for emotional distress in appropriate cases.
“In this context, media organisations are of the view that equitable actions for breach of confidence should be left to develop at common law on a case-by-case basis and the introduction of legislation is unnecessary.”
The Standing Committee on Law and Justice has requested the NSW Government to respond to the recommendations by September 5.
You can download the recommendation report here.