GLJ: At last count four Australian inquiries recommended a statutory tort of privacy. Do we need one and what form should it take?
TB: It’s not so much a question of whether I think we need one, I think we are going to get one eventually.
I think it would be desirable too, for the courts to develop it.
The difficulty with legislation is that it so often has unintended consequences, particularly in areas which affect protection of privacy or reputation on the one hand, and freedom of expression on the other.
I think that on the whole judges are better placed to develop the law incrementally in an area like this than parliamentarians.
GLJ: Do you think that’s because we don’t have a Bill of Rights in this country so there’s no counter-veiling protection for freedom of expression?
TB: That’s an interesting question because when you look at the way that the so-called tort of privacy has been developed in the UK, it’s very much based on Articles 8 and 10 of the European Convention on Human Rights, which has been enacted into domestic law by the Human Rights Act.
And of course the convention establishes a number of rights upon which the tort is based.
On the one hand you’ve got Article 8 – headed right to respect for family and private life – and on the other hand there’s Article 10, which is headed freedom of expression.
On top of that you’ve got section 12 of the Human Rights Act which requires particular regard to be paid to freedom of expression in any application for relief and in the case of journalism, the extent to which the material is either public or in the public interest.
The legal protections in the United Kingdom are very much based upon what you might call established or fundamental rights. We just don’t have them here.
GLJ: Do you think we need them?
TB: I don’t think at the moment that we need them, but I do think that if the courts develop a right of privacy, then the law that the courts create must incorporate similar matters, as matters of law, into the tort.
In other words, the kinds of matters that are in Articles 8 and 10 and section 12 of theHuman Rights Act are matters that are essential to be worked into any personally enforceable tort of privacy in Australia.
I’m undecided as to whether we actually need what you might call constitutional protections in regard to those matters.
GLJ: The courts haven’t been very pro-active in this area however, have they?
TB: No, they haven’t and we’ve had, as you say, four inquiries and recommendations that there should be a personally enforceable tort of privacy.
GLJ: I suppose there are some claims that are brought in breach of confidence that amount to a kind of privacy claim.
TB: Certainly – you’ve got Giller and Procopets and so on, but I think that the action for privacy, based on breach of confidence does not go far enough.
The reason I say that is this: the action for breach of confidence as applied to a claim for privacy is capable of protecting information that is private, or information that is partially private.
But then you run up against the principle that the courts won’t normally make an order that has no work to do; that is pointless.
Particularly in the breach of confidence sphere, as soon as you get information which is at least, to some extent, out in the public domain, there is a real question of whether there would be any effectiveness.
The action for privacy goes, or should go, further than that and it should also protect harassment or intrusion, which is something that I just don’t think that an adapted action for breach of confidence is capable of protecting.
This is a distinction which has been made most recently by the UK Supreme Court in PJS against Newsgroup Newspapers, where the court, drawing on things that had been said at first instance and on appeal earlier, particularly emphasised this distinction between the reluctance of equity to protect information which is really out in the public domain, or partially out in the public domain.
The distinction is between that position and the protection that a tort of privacy gives, or ought to give, to intrusion upon seclusion or harassment, even if the information is already publicly available.
So I don’t think that an adapted action for breach of confidence would go far enough.
GLJ: There are some who argue that we have enough protection in our current harassment laws to cover what you’re talking about. What do you say to that?
TB: Well, I don’t think that apprehended violence orders and the like cover the kind of situation that is often dealt with by the courts here and in the UK.
GLJ: You’ve recently argued an interesting version of a privacy claim. The case was settled. It was Gina Rinehart against Channel Nine and the production company which made a TV series based on her life. Rinehart’s claim was what is known as a “false light” privacy claim. Can you explain your submissions?
TB: We argued the claim on two limbs; one, upon the four limbs of the United States tort of privacy, and there was an alternative claim that was based on a variation of the UK law, but without explicitly bringing in the European Convention, which of course we can’t have any reliance on.
In so far as her claim was based on the law of the United States, we alleged four things – that she had a right not to have her private affairs or those of her private affairs that the public had no concern with to be kept from public view, to be free of unreasonable intrusion upon her seclusion, to be free of exploitation of her name and likeness and personality, and significantly in this case, to live her life without being subject to unwarranted publicity that placed her in a false light.
The alternative aspect of it was more conventionally that she had a right not to have exposed information which is obviously private or which a reasonable person in the position of the plaintiff would have an expectation of privacy.
GLJ: What kind of information were you referring to?
TB: A good example in her case was the depiction of her and Frank Rinehart having this kind of garish wedding in Las Vegas with an Elvis Presley impersonator standing behind them. It’s a very good example because it’s both tawdry and untrue.
That was just completely made up and it seems to me that that is a very good example of the “false light” element of the claim.
It was particularly fictitious in the sense that the program portrayed this garish wedding occurring at a time when the plaintiff’s mother was dying in Australia, with the inference being that she couldn’t be bothered going home.
That seems to me to be a very good example of a situation in which a reasonable person in the position of the plaintiff would have an expectation of privacy – and it wasn’t even true.
GLJ: If you get a “false light” privacy claim up in the way that you wanted to with Gina Rinehart, where does that leave the producers of drama series that are based on people who are still alive?
TB: Well, I suppose it leaves them in much more of a difficult position than they are in at the moment.
It frequently happens that persons who make docudramas or historical dramas get releases from the people they are proposing to portray and I know from my own experience – not the Rinehart case – that if you don’t do that it can cause a vast amount of difficulty and threaten the existence of the entire project.
The short answer to your question is yes, it may create a greater difficulty, but producers of dramas already have the restraints of the law of defamation and possibly also malicious falsehood upon them.
I am not necessarily advocating for a law of this kind to be introduced because I find the question extremely difficult and I’m not sure whether I personally think it’s a good idea or not.
GLJ: There’s been an explosion in social media in the last ten years. Why don’t you think – and the statistics certainly seem to bear this out – that there’s been a concomitant rise in defamation or injurious falsehood actions?
TB: I don’t know, but I suspect it’s just that litigation is a difficult and potentially expensive exercise for people and probably the multitudes of people who use social media aren’t familiar with how to litigate. And I suspect that people will just put up with a lot of abuse.
GLJ: There’s certainly a high level of abuse on social media, and this is a question about 18C. Do you think there should be a law to protect people from being offended?
TB: No, I don’t think there should be a law to protect people from being offended at all and I think that that’s a very mainstream view.
A lot of people who otherwise strongly support laws against racial vilification are strongly opposed to the idea that people should be protected from being offended.
GLJ: What if you’re offended on the basis of your race?
TB: I just don’t think it’s appropriate – taking into account the checks and balances and the need for open expression – to have a legal sanction for giving offence on the basis of race.
Certainly we need to have laws against incitement, particularly incitement to violence, but you can’t cure every social problem by passing a law.
A couple of years ago the human rights bureaucracy produced what they said was a consolidation of all the discrimination protections that then existed, and they added a few more.
It was never actually enacted, but one of the things that was introduced was that if you were subjectively offended in, for example a workplace environment by the expression of a political view, you could complain to the Human Rights Commission about it.
That was extraordinary that it should have even seen the light of day. The idea behind it, seemed to me was, that you could make people debate with refinement, taste and acuity by legislating for it, which is an absurd proposition.
So I don’t think, in all the circumstances, that people should have a right not to be offended.
It’s not the same as the law of defamation, which is a long-established common law and statutory right not to have your reputation damaged.
It may well be that that tort is far less important now than it was 100 years ago when there was no social security safety net, but I don’t think there should be a freestanding right not to be offended on any basis.
GLJ: Do you agree with George Brandis’ view that you should have a right to be a bigot?
TB: It depends what you mean by that expression. There are plenty of bigots out there and you can’t be put in jail simply for being a bigot.
To the extent that that remark was supposed to imply approval of being a bigot – which I am sure it wasn’t – then obviously that’s wrong.
You can’t legislate to prevent people from being bigots. That’s not to say it’s desirable, or that there should be some sort of statutory right protecting bigotry.
However, I think the real problem in the Racial Discrimination Act is that the defences are ineffective, and that’s because of the typically careless drafting.
The fair comment defence in section 18D has a requirement of reasonableness and reasonableness is anathema to fair comment.
I once heard it said very forcefully by Tom Hughes QC that “the defence of fair comment protects the crank”, and as soon as you impose a requirement of reasonableness on a fair comment defence you neuter the defence, you destroy the defence.
I’m not all that fussed about whether or not people should be protected from mere offence, but I think the defences really need attention.
GLJ: If you could change one thing about media law in Australia what would it be?
TB: Can I have two?
GLJ: Yes, you can have two.
TB: The first one would be to wave a magic wand and bury once and for all the absolute obsession that courts in Australia, but particularly courts in this jurisdiction, still have about imputations.
I’m reminded of the second reading speech of the Defamation Bill in 2005 in the NSW parliament, where Mr Debus, then attorney general, said this.
He began by saying that the Bill retained some of the best features of the NSWDefamation Act 1974 and jettisoned some of its more problematic provisions.
Can I pause here to say talking about the best features of the 1974 Act is a bit like talking about the tallest building in Narrandera…
He referred to a speech given by David Levine about the “excruciating and sterile technicalities” that result from making the imputation the cause of action and he added some observations to that effect himself and triumphantly concluded, “clause 8 will finally put an end to the needless complexity that His Honour described”.
And clause 8 of course became section 8, which makes the matter, not the imputation, the cause of action.
It’s nobody’s fault, but nothing changed. I don’t know how you fix it.
Obviously there has to be some protection against sloppy pleading and you can’t have a situation like in Singleton and French where you go to trial and the parties think that the imputation means something different.
But the kind of sterile debates about precision, for example, all the cases about what is meant by the word “caused” and all the cases about what is meant by the words “responsible for”.
Juries are possessed of a great deal of common sense – you just don’t need to have those sorts of arguments.
GLJ: That’s my observation too. Why don’t we go to a system where you show them the matter complained of and say was “X” defamed, and if so, how badly, and what are the damages?
TB: I understand in decades gone by, in the United Kingdom, the jury would be routinely asked, do you find for the plaintiff or the defendant? If you find for the plaintiff, what sum of damages do you award?
And there’s an enormous amount to be said for that.
GLJ: Except that it would put an enormous amount of barristers out of business…
TB: The other thing that I would like to see – keep the cap by all means – is juries to be given back the function of awarding damages.
GLJ: Why is that?
TB: Because I think that the 7A experience showed us that in some inexplicable way, juries perform better when they retain control of the entire process.
Apart from that I can’t see any good reason why that function was taken away from juries.
I think there was a perception, particularly among defendants, in cases like Carson, that juries were excessive.
But that was fixed by the cap, so what’s the rationale for taking the function of awarding damages away from them?
GLJ: There are some in the area of defamation that would like to see juries dispensed with, for example, the former NSW Supreme Court Chief Judge at Common Law, Peter McClellan. Why are you so in favour of juries?
TB: I think a jury is a really important and valuable link between the community and the civil justice system, which has been all but abolished.
Secondly, I think that the decisions about whether something is defamatory, whether something would have been conveyed to the ordinary reasonable person, whether something is comment, whether it is a statement of fact – these are things that quintessentially appropriate for ordinary members of the community to decide, in my opinion.
I am not saying that judges can’t decide them, but I think it is highly appropriate that they’re decided by ordinary members of the public chosen at random.
GLJ: When you think back, what was the most interesting or satisfying media law case you did?
TB: If I had to choose one case, it was Snedden and Nationwide News. That was an absolutely fascinating case.
You had a naturalised Australian citizen, but with a very close connection to the Serbian community from which he originally came.
He went over to Yugoslavia during the period of the civil war there in the early 90s and fought in the forces of the so-called Republic of Krajina, which was a breakaway Serbian enclave in Croatia.
He returned to Australia in the mid-90s, he was living in Perth, and he was tracked down by The Australian and certain allegations were put to him that he sued over, allegations in relation to war crimes and so on.
It was a bit of an Oscar Wilde moment for him because The Australian threw a vast amount of resources into defending the claim on the basis of truth.
They flew a number of his victims to Australia to give evidence. A special court was convened in Zagreb from which video link evidence was taken from other victims and the imputations at the end of the day were found to be true, which of course didn’t assist his case because by that time he was being detained on an application by Croatia for him to be examined.
GLJ: As a war criminal?
TB: Yes, with a view to prosecuting him with crimes which he is now on trial for in Split.
GLJ: It was a brilliant case and I think it was very satisfying for his victims to confront him in the court.
TB: Very much so. It made me think after that case that I would never have made much of a criminal lawyer because I found some of the evidence of the victims, particularly the rape victim from Bosnia, I found her evidence to be shocking and very affecting.
GLJ: You’re heading off to London shortly. What will you be doing there?
TB: I’m joining a media law chambers called 5RB. It’s the chambers of Desmond Browne QC and Matthew Nicklin QC – chambers with a long and distinguished record in media law.
Assuming somebody briefs me, I’ll be doing much the same as I’m doing now, but with probably a much greater emphasis on privacy and data protection.
GLJ: Even though you won’t be here next year, what do you forecast for the media law landscape in Australia in the next 12 months?
TB: I find this quite difficult to answer because I can’t really see that anything is going to change very much. It’s more of the same.
GLJ: Well, it certainly won’t be the same without you, Tom. Thanks very much.
TB: Thank you.
This interview was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.