PRIVACY, BREACH OF CONFIDENCE, INVESTIGATIVE REPORTING AND JOURNALISTS’ SOURCES

DIRECT PROTECTION AT COMMON LAW?

Starting point: Kaye v Robertson [1991] FSR 62
Facts: K was a well-known actor in the UK who was driving through the street when a piece of wood smashed through his windscreen and seriously injured him. He was taken to the hospital where he was put in intensive care, and then moved into a private room. R was the editor of Sunday Sport, which was a weekly publication with a ‘lurid and sensational style’, who was the second defendant. On February 13, a journalist from the newspaper went to K’s room and, ignoring warning signs not to enter under any circumstances, entered the room and apparently interviewed and photographed K using a flashbulb. K, however, had no recollection of the incident. R made it clear that they intended to publish an article about the events surrounding K, who subsequently brought proceedings for an injunction to restrain publication. The arguments made by K were that the article implied that K consented to give the interview and to be photographed (libel), malicious falsehood, trespass to the person and passing off.

Found (Glidewell LJ): with respect to libel, he found that the implication in the article that K had consented to the interview would have the effect of lowering K in the ‘esteem of right-thinking people’ and was clearly defamatory. Cited Tolley v JS Fry as the main authority for the finding of defamation in this instance; however, it was argued by R that in actions for defamation, the power to grant an injunction must ‘only be exercised in the clearest cases, where any jury would say that the matter complained of was libellous and where if the jury did not so find the court would set aside the verdict as unreasonable’ (William Coulson & Sons v James Coulson & Co [1887]) Therefore, the judge decided not to base an injunction on a right of action for defamation because in this case it was found that the conclusion that a jury would make a finding of defamation was not inevitable.

As to malicious falsehood: the essentials of the tort are that the defendant has published about the plaintiff words which are false, that they were published maliciously, and that special damage has followed as the direct and natural result of their publication (s 3(1) Defamation Act 1952 (UK) states that it is sufficient if the words published are calculated to cause pecuniary damage). Test (Coulson v Coulson) applied that the plaintiff must show that the words were false. In this case, the injunction was granted in respect of this tort because the test was found to be satisfied

No trespass to the person or passing off was found, and therefore an injunction was granted

•    Note Bingham J: the case highlights the failure of the common law and statute in the UK to protect effectively the personal privacy of individuals
o    See Legatt J for the development in the US: the right of privacy has been recognised there as a broad principle to protect the individual against ‘the infliction by the press of mental pain and distress through invasion of privacy
o    A ‘right of publicity’ has also developed to protect the commercial interest of celebrities in their identities

DIRECT PROTECTION AT COMMON LAW?

ABC v Lenah Game Meats (2001) 208 CLR 199 (leading authority for the tort of invasion of privacy)
Facts: L was an abattoir who killed possums. Someone broke and entered the premises and installed hidden cameras, the film of which was given to an animal-rights group, who then sold it to the ABC, who intended to broadcast the footage. L instituted proceedings seeking an injunction restraining the publication of the footage. The issue was whether there was an identifiable cause of action; what cause of action could be available to which an injunction could attach

Tasmania SC: it would be unconscionable for the ABC to broadcast the footage they received; majority decided that by general notions of unconscionability; minority of High Court found that it was possible to restrain publication by reference to some general notion of unconscionability.

High Court majority: remedies attach to identifiable causes of action and not to idiosyncratic notions of fairness; needs to be identifiable and recognised. In this case, the majority found that the TASSC erred. The next issue was whether there was an identifiable cause of action against the ABC. The issue was what cause of action L has against ABC: it is not trespass or private nuisance. Therefore there was a suggestion of potentially breach of confidence; cause of action based on IP rights at issue and also that there was a cause of action for the tort of invasion of privacy.

2nd argument: in relation to copyright it emerged from the joint judgment of Gummow and Hayne JJ. The argument was that when the Animal Liberation Group trespassed on land they took footage, which raised the question of who owned the copyright in the cinematograph film taken by the trespassers, see pg 156 for the argument that in the circumstances of the trespass, when the group created the film they held the copyright on constructive trust for L. If there is a constructive trust over the copyright, by what means would the ABC be held liable and restrain ABC for broadcast? The provision to the ABC of the tape was a breach of trust and therefore the ABC, by broadcasting this would be acting in knowing assistance pursuant to Barnes v Addy and its conscience should be constrained by an interlocutory injunction. The issue then turns upon breach of confidence or the tort of invasion of privacy

Breach of confidence (Gleeson CJ): consider developments in UK law for the effect of this judgment; see pg 1/58 of reading materials. Begins by recognising the difficulty of establishing a relationship between ABC and L (from equity in order to have an action for breach of confidence there needs to be a relationship of confidence and also confidential information that is disclosed that arises out of the relationship). The problem for Gleeson CJ is that even accepting that a cause of action could be made out; there are real difficulties in identifying the information to be disclosed as confidential. Discusses what constitutes private or confidential information; most quoted paragraph is paragraph
42 (1/60). Most important point is the difficult way/real problem that definitions of publicity and privacy pose for the purposes of definition (whether it is based on activity, exercise of power, location, some intrinsic notion of the activity itself?). Notes the multiple senses in which privacy is used and it is not useful to distinguish privacy from publicity. In examining whether information was private, G suggested that the activity occurred on private property but was subject to governmental registration. The abattoir had to be licensed and there were inspections conducted. If people came onto the property there was nothing to shield the people from looking at the abattoir. In this case the activity was not private or confidential and couldn’t be protected by a cause of action for breach of confidence. Also note the final sentence, ‘the requirement of disclosure or observation would be highly offensive to a reasonable person of ordinary sensibilities is a good test for what is private’. One of the reasons that the common law is slow to devise privacy protection is the difficulty in articulating a standard. Gleeson CJ provides a working definition for what is private and acknowledges the possibility of identifying standards/norms by which legal regulation of privacy may be achieved. It contemplates disclosure/observation of information or conduct and assesses whether that disclosure by reference to the standard of being highly offensive.

Other judgments dealt with the issue by reference to the possibility of a tort in invasion of privacy (Gummow and Hayne JJ): was important to deal with the status of Victoria Park Racing v Taylor which had been cited as an impediment for identifying a tort of invasion of privacy in Australian law. Identified what the status of the particular case was; see pg. 1/61 for the result. According to the judges, Victoria Park Racing properly understood is only authority for the proposition that the tort of private nuisance doesn’t protect privacy as an int3erest. From paragraph 107, the result of the proper recognition of the ratio was that the case doesn’t stand in the path of the development of such a course of action because it only established that private nuisance only protects privacy. Also suggested that the common law should recognise such a tort but it is unclear whether they have in fact established a tort. On the best reading of the judgment in Victoria Park Racing, because Lenah is a corporation it doesn’t have a private life and privacy as an interest to be protected is an incidence of human dignity and is therefore only for the benefit of natural persons. In this case, Gummow and Hayne JJ suggested that even if a tort can be recognised it wouldn’t be for the benefit of entities such as L. the effect of this was that the majority found that there was no cause of action L could have against ABC and in the absence of a cause of action L couldn’t have an interlocutory injunction to restrain the broadcast of the footage.

Kirby J: took a broad view and found that in circumstances where information which lacks the quality of confidence has been obtained illegally, tortiously, surreptitiously or otherwise improperly, the preservation of the confidentiality of the information may be of substantial concern and the jurisdiction of the court should be exercised in such a situation even where the possess or is itself innocent of wrongdoing.

Grosse v Purvis (2003) Aust Torts Reports 81-706
Facts: G had an affair with P and after she decided to break it off P began to engage in a course of conduct which G found to be unfounded and unwarranted. G instituted proceedings against P and consistent with Kaye v Robinson, G relied on a range of torts which relied on the specific incidents of conduct engaged in. she alleged that P had engaged in acts of trespass to land, private nuisance, battery, negligence, intentional infliction of mental harm (Wilkinson v Downton principle). Identified what causes of action would apply to each incident. She also claimed that the course of conduct overall was actionable as a tort of invasion of property derived from ABC v Lenah Game Meats or that the conduct constituted the course of harassment which she argued Australian law should recognise

Found: examined whether the incidents established the torts of which she complained and then turned to the issue of whether the conduct amounted to an invasion of privacy or the tort of harassment. He was prepared to accept that the tort of invasion of privacy was recognised from ABC v Lenah Game Meats against natural persons and that invasion of privacy had been made out on the facts of this case. Because the HC didn’t need to consider whether a tort of invasion of privacy could be made out they didn’t consider what the elements of the tort were.

In this case, the judge viewed there to be an actionable right of an individual person to privacy; see paragraph 44 (1/120) of this case where the judge thought there were 4 elements for the cause of action. Firstly, there is a willed act by the defendant (the trial judge reserved the question of whether there could be a negligent invasion of privacy). The second element was that the conduct needed to intrude on the seclusion/privacy of the plaintiff and the intrusion needed to occur in circumstances that would be highly offensive to a reasonable person of ordinary sensibilities. Lastly, the intrusion must cause the plaintiff a detriment in the causing of mental harm or distress.

In this case there was evidence that G had suffered psychological harm in the course of conduct. The trial judge was willing to acknowledge a defence of public interest to claims of invasion of privacy but found that in this case no such defence was arguable. Applying the test to the facts, the judge was prepared to find that there was a tort of invasion of privacy made out that was without defence. He was also prepared to accept that the tort of harassment formed the part of Australian law but he didn’t elaborate on this. P appealed to the Court of Appeal, but the case settled at the door of the court.

Kalaba v Commonwealth [2004] FCAFC 326
Facts: K claimed a duty of care based on the timeliness of the deliveries of the mail. He claimed that the Commonwealth had failed to deliver his letters on time and when finally went to the office his mail had been opened and it constituted an invasion of privacy. Under the Australian Postal Corporation Legislation there was complete immunity to Australia Post.

Found: the Full Federal Court suggested that ABC v Lenah Game Meats does not establish positively a cause of action for invasion of privacy in Australia and the HC would have to declare that. The court decided that the weight of authority regardless of the finding of an action for invasion of privacy in Grosse v Purvis was against the proposition. There would be difficulties in this case for K proving a causal connection from the breach of privacy and his conviction for arson

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