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- Privacy and the Media
Privacy and the Media
- By Student at Law
- Published 27/06/2007
- Sydney Uni
- Unrated
Position in the UK
Wainwright v Home Office
Facts: W went to visit relates in jail and the prison officer suspected they were smuggling drugs and so had to go through a strip search. Under the Home Office rules there were rules as to how this should be conducted. One rule stated that the strip search was to be conducted in a room that was not viewable from the outside by two persons of the person’s gender, would only be asked to remove one part of clothing at one time. The strip-searchers contravened many of the regulations in searching the Wainwrights. Both of the searches occurred in rooms fully visible to the residential block of towers next to the prison and there were more than 2 officers present and in Mr W’s case there were a number of women and both had to stand fully naked. The Ws argued Wilkinson v Downton intentional infliction of mental harm.
Found: the House of Lords argued that neither had articulated psychiatric harm and the particular tort required recognised psychiatric harm. Above this, the House of Lords found that the liability should not be recognised as a separate tort. The only remaining cause of action was a tort of invasion of privacy. The H of L found that there was no such tort recognised under English law, which is consistent with the development of UK law in breach of confidence.
Note with this case and Hosking: the possibility that in a tort of invasion of privacy one can get damages for mental and emotional distress which do not require proof of recognised psychiatric harm
• Hosking v Runting: there was the suggestion that damages could be awarded without the proof of psychiatric harm
• UK: people have received damages for distress for an equitable cause of action
• Both these approaches to the issue of remedies proceeding on the basis that invasion of privacy can sound in damages even if there was no psychiatric harm so that embarrassment is sufficient
Also note the approach of the US to the issue of privacy protection: RSM Summary notes, ‘Invasion of privacy torts in American law’
• Courts have developed the most sophisticated body of law: are 4 torts which are grouped loosely under ‘invasion of privacy’ (Prosser’s 4-fold categorisation of US torts)
• 1: public disclosure of private facts
o Gives effect to the conception of the importance of privacy in terms of informational privacy
o Application is circumscribed by the First Amendment (right to free speech): recent decisions have almost abolished this torts
- Florida Star v BJF: court held that it a newspaper had immunity from publishing the name of a rape victim
• 2: unreasonable intrusion upon the seclusion of another
o Gives effect to privacy as a territorial form of personal interest: you have a right to your own personal/private space
o Scope of the tort is wide; but is narrowed because courts hold that there is no remedy for intrusions upon people in publicly accessible places
• 3: tort of portraying a plaintiff unreasonably in a false light
o Can portray true facts/private facts but do so in an unreasonable way which puts the plaintiff in a false light (has overlap with defamation)
o Overlap with defamation: has the same requirement that the plaintiff prove that the defendant published the report with knowledge of its falsity or in reckless disregard for the truth
• 4: tort of publicity
o Appropriation of the image or likeness of a plaintiff; it is an incident of being a natural person that you should have some right over the use and deployment of your image (particular for commercial gain)
• Interesting point: invasion of privacy is not frequently argued because while the law has recognised the 4 forms, the impact of the 1st amendment has developed countervailing defences which means that the torts are infrequently pleaded and infrequently successful
• Under US Constitution there are guarantees as to private life and freedom of speech: the presence of these rights has encouraged courts to engage in a consideration as to how these rights can be protected and how they conflict; it is not coincidental that an interest in direct privacy protection has emerged in NZ and the UK as a result of both these jurisdiction adopting constitutional Bills of Rights with a concern to protect privacy as well as protection of freedom of speech
o In both those countries, the common law has considered how the rights have been protected, and note that the reason why in Australia there hasn’t been privacy protection developed is the lack of the explicit statutory constitutional right to privacy and freedom of speech; Australia simply accepts these as inherent but haven’t developed a way in which these rights should be directly addressed and how they conflict with each other
o Indicates a reason why the UK and NZ has recognised a degree of privacy protection in those countries
INDIRECT PROTECTION AT COMMON LAW
Trespass & Privacy
• Trespass involves a direct interference with the use and enjoyment of land: action per se (without proof of damage) because it involves a direct interference
• Private nuisance: requires proof of damage because it is an indirect interference
Trespass: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
Facts: A lived on and operated a dirt bike track at Wyee; to build it he collected used tires. The local council became concerned about the environmental hazard that was caused by decomposing tires and organised a raid on property and invited A Current Affair to come along. ACA recorded the raid; Tara Brown, the reporter introduced herself and identified herself and A told her to get off the property. Later, one of the cameramen snuck onto the property and got footage of the dirt bike track, which they then used on the story. A instituted proceedings for trespass to land against Channel 9 and succeeded. Channel 9 argued that there was an implied license for its employees to go onto the land and to communicate with the owner of the property. There is an implied license recognised at law which allows someone to go onto property to communicate with you and unless you take positive steps to preclude that step then there is an implied license for the world to enter your property to communicate with you. In this case, the implied license wasn’t precluded because the gate wasn’t locked and there were no other positive steps taken
Found: even if Channel 9 entered pursuant to an implied license, to have the benefit you have to be acting for the purpose for which it was conferred. Here, it was conferred for communication but the purpose of Channel 9 was to
obtain the footage.
Because they had entered for a purpose alien to the purpose for which
the license had been conferred, they couldn’t claim the implied license
and their action was trespass. Channel 9 then argued that media outlets
had an implied license to seek an interview with the occupiers of the
property. Found that the common law sets its face against recognising
special privileges for the media and there was no principled basis to
discern an implied license specifically for the license. Even if there
was a license implied, in this case the entry was not for the purpose
of seeking an interview and it was to provide an opportunity to get
footage.
The entry was trespassory from the outset; in this case, Spiegelman J made comments as to the interests protected by trespass. Trespass protects possessory interests in land; in the course of his judgment he identifies privacy as an incident of trespass of land. One incidence of possession is your right to protect your privacy when you are on the land. He recognised that the tort of trespass to land can incidentally afford a measure of protection for the possessor’s privacy and one of the functions of a possessor being entitled to let people on or exclude the outside is bound up with some incidental measure of privacy protection. He was at pains to point out that privacy protection is directly protected, but agreed it was an incident of the primary purpose which was the protection of possession.
The court awarded $100,000 in damages, but the CA halved the payout and awarded only compensatory and aggravated damages by finding that the conduct of Channel 9 was not sufficiently egregious, high-handed or contumacious to justify the award of additional damages. Compensatory damages provide remedies for actual pecuniary losses and to vindicate the plaintiff’s violation of possession of land. Aggravated damages can be awarded where the conduct of the defendant aggravated the insult to the plaintiff as a result of injury from the tort. Exemplary damages are awarded if there are additional factors.
Craftsman Homes Australia Pty Ltd v TCN Channel 9 Pty Ltd [2006] NSWSC 519
Facts: a viewer of ACA phoned them about dodgy practices of C. ACA decided to do a story on this and investigated and found at least 4 incidences where they claimed that C had done a substandard job. To get footage, they had a researcher act as a customer. During the meeting she had with C her mobile phone rang because her husband was going to come and join her because he was interested in being part of the process. The head of C went to let in the husband who was not in fact a husband of the researcher but was a reporter of ACA. The reporter had a Handicam on his person and sat down to converse with the head and during the course of which he got up and declared he was Ben from ACA to confront C about dodgy building. C instituted proceedings for defamation and trespass to land. The imputations are that C performed substandard building work. The case is interesting because here Channel 9 managed to justify the imputations and relied on 4 different contracts in the course of which the court was satisfied that C did in fact engage in substandard building practices. In this case, there was a complete defence to a claim in defamation. The balance of the judgment is taken up with the defence of justification which was pleaded under the old s 15 which required public interest as an element of the defence and C argued there was no public interest because there were purely contractual matters.
Found: building standards are a matter of public interest and it was an unduly narrow construction of the facts to argue that it was a private matter of contract law. Channel 9 had a complete defence but they had no defence tow hat was a clear trespass to land. There was a direct interference with the use and enjoyment of land and it was clear that both the researcher and reporter went onto the property for reasons that were wholly alien to the implied license.
Exemplary, compensatory and aggravated damages were awarded ($230,000) for trespass to land. Significant damages may be awarded in such circumstances and even if the claim for defamation cannot be made out, if there is a direct encroachment on land then you can always argue trespass
Wallis v Wallis (1995) 13 SR (WA) 218
Facts: W2 was excommunicated from the Exclusive Brethren. The plaintiffs were other members who had remained in the EB. W2 took his story to Channel 9 and a story was done about the EB. As part of it, the employee of Channel 9 and W2 went to W1’s house. The proceedings against Channel 9 were settled.
Found: the district court of WA awarded damages against W2 being in the way of compensatory damages and exemplary damages. Discussed the types of damages to be awarded in actions for trespass; exemplary damages may be awarded if it appears that, in the commission of the wrong, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights. Aggravated damages are awarded by way of compensation for injury to the plaintiff resulting from the circumstances and manner of the defendant’s actions. Exemplary damages, however, are awarded to ‘punish and deter’ and are punitive in character. The same set of circumstances may justify either exemplary or aggravated damages, however.
Whiskisoda Pty Ltd v HSV Channel 7 Pty Ltd Pty Ltd, unreported, Supreme Court of Victoria, 5 November 1993, McDonald J
Facts: Channel 7’s employee went to a venue operated by W; at the premises there was nude tabletop dancing where Channel 7 wanted to explore this issue of public interest and therefore asked the employee to video the dancing. W claimed that there were signs which informed patrons that no photography or cameras were to be permitted to be used. The employee of Channel 7 claimed he saw no such signs but nevertheless concealed the camera because he thought W wouldn’t be amenable to him openly filming on the premises. The footage was taken and a story was to be mounted when W became aware of the events. They sought an interlocutory injunction to restrain the broadcast of the footage.
McDonald J: had to determine whether an interlocutory injunction should be issued. Required consideration of whether there was a serious question to be tried and where the balance of convenience lay. Refused to grant injunction; in this case there was a strong case of trespass to land which would result in non-insubstantial damages which were regarded as being an adequate remedy for W and also given the fact that there was a significant dispute as to a question of fact (whether there were signs in place).
As a general rule, as Channel 7 is the trespassor; the video taken in the course of the trespass is considered to be the ‘fruits of the trespass’. The issue here was whether the plaintiff was able to restrain the defendant who was both trespassor and broadcaster from using the fruits of the trespass. As a general rule, because trespass is a tort the principal remedy is an award of damages; but there may be circumstances in which it can be argued that an interlocutory injunction should be granted to ameliorate the effects of the trespass. This can occur where the defendant broadcaster is engaged in a continuing trespass on the plaintiff’s property or as in this case, in circumstances where the plaintiff wants to restrain the defendant’s use of the fruits of the trespass.
Wainwright v Home Office
Facts: W went to visit relates in jail and the prison officer suspected they were smuggling drugs and so had to go through a strip search. Under the Home Office rules there were rules as to how this should be conducted. One rule stated that the strip search was to be conducted in a room that was not viewable from the outside by two persons of the person’s gender, would only be asked to remove one part of clothing at one time. The strip-searchers contravened many of the regulations in searching the Wainwrights. Both of the searches occurred in rooms fully visible to the residential block of towers next to the prison and there were more than 2 officers present and in Mr W’s case there were a number of women and both had to stand fully naked. The Ws argued Wilkinson v Downton intentional infliction of mental harm.
Found: the House of Lords argued that neither had articulated psychiatric harm and the particular tort required recognised psychiatric harm. Above this, the House of Lords found that the liability should not be recognised as a separate tort. The only remaining cause of action was a tort of invasion of privacy. The H of L found that there was no such tort recognised under English law, which is consistent with the development of UK law in breach of confidence.
Note with this case and Hosking: the possibility that in a tort of invasion of privacy one can get damages for mental and emotional distress which do not require proof of recognised psychiatric harm
• Hosking v Runting: there was the suggestion that damages could be awarded without the proof of psychiatric harm
• UK: people have received damages for distress for an equitable cause of action
• Both these approaches to the issue of remedies proceeding on the basis that invasion of privacy can sound in damages even if there was no psychiatric harm so that embarrassment is sufficient
Also note the approach of the US to the issue of privacy protection: RSM Summary notes, ‘Invasion of privacy torts in American law’
• Courts have developed the most sophisticated body of law: are 4 torts which are grouped loosely under ‘invasion of privacy’ (Prosser’s 4-fold categorisation of US torts)
• 1: public disclosure of private facts
o Gives effect to the conception of the importance of privacy in terms of informational privacy
o Application is circumscribed by the First Amendment (right to free speech): recent decisions have almost abolished this torts
- Florida Star v BJF: court held that it a newspaper had immunity from publishing the name of a rape victim
• 2: unreasonable intrusion upon the seclusion of another
o Gives effect to privacy as a territorial form of personal interest: you have a right to your own personal/private space
o Scope of the tort is wide; but is narrowed because courts hold that there is no remedy for intrusions upon people in publicly accessible places
• 3: tort of portraying a plaintiff unreasonably in a false light
o Can portray true facts/private facts but do so in an unreasonable way which puts the plaintiff in a false light (has overlap with defamation)
o Overlap with defamation: has the same requirement that the plaintiff prove that the defendant published the report with knowledge of its falsity or in reckless disregard for the truth
• 4: tort of publicity
o Appropriation of the image or likeness of a plaintiff; it is an incident of being a natural person that you should have some right over the use and deployment of your image (particular for commercial gain)
• Interesting point: invasion of privacy is not frequently argued because while the law has recognised the 4 forms, the impact of the 1st amendment has developed countervailing defences which means that the torts are infrequently pleaded and infrequently successful
• Under US Constitution there are guarantees as to private life and freedom of speech: the presence of these rights has encouraged courts to engage in a consideration as to how these rights can be protected and how they conflict; it is not coincidental that an interest in direct privacy protection has emerged in NZ and the UK as a result of both these jurisdiction adopting constitutional Bills of Rights with a concern to protect privacy as well as protection of freedom of speech
o In both those countries, the common law has considered how the rights have been protected, and note that the reason why in Australia there hasn’t been privacy protection developed is the lack of the explicit statutory constitutional right to privacy and freedom of speech; Australia simply accepts these as inherent but haven’t developed a way in which these rights should be directly addressed and how they conflict with each other
o Indicates a reason why the UK and NZ has recognised a degree of privacy protection in those countries
INDIRECT PROTECTION AT COMMON LAW
Trespass & Privacy
• Trespass involves a direct interference with the use and enjoyment of land: action per se (without proof of damage) because it involves a direct interference
• Private nuisance: requires proof of damage because it is an indirect interference
Trespass: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
Facts: A lived on and operated a dirt bike track at Wyee; to build it he collected used tires. The local council became concerned about the environmental hazard that was caused by decomposing tires and organised a raid on property and invited A Current Affair to come along. ACA recorded the raid; Tara Brown, the reporter introduced herself and identified herself and A told her to get off the property. Later, one of the cameramen snuck onto the property and got footage of the dirt bike track, which they then used on the story. A instituted proceedings for trespass to land against Channel 9 and succeeded. Channel 9 argued that there was an implied license for its employees to go onto the land and to communicate with the owner of the property. There is an implied license recognised at law which allows someone to go onto property to communicate with you and unless you take positive steps to preclude that step then there is an implied license for the world to enter your property to communicate with you. In this case, the implied license wasn’t precluded because the gate wasn’t locked and there were no other positive steps taken
Found: even if Channel 9 entered pursuant to an implied license, to have the benefit you have to be acting for the purpose for which it was conferred. Here, it was conferred for communication but the purpose of Channel 9 was to
The entry was trespassory from the outset; in this case, Spiegelman J made comments as to the interests protected by trespass. Trespass protects possessory interests in land; in the course of his judgment he identifies privacy as an incident of trespass of land. One incidence of possession is your right to protect your privacy when you are on the land. He recognised that the tort of trespass to land can incidentally afford a measure of protection for the possessor’s privacy and one of the functions of a possessor being entitled to let people on or exclude the outside is bound up with some incidental measure of privacy protection. He was at pains to point out that privacy protection is directly protected, but agreed it was an incident of the primary purpose which was the protection of possession.
The court awarded $100,000 in damages, but the CA halved the payout and awarded only compensatory and aggravated damages by finding that the conduct of Channel 9 was not sufficiently egregious, high-handed or contumacious to justify the award of additional damages. Compensatory damages provide remedies for actual pecuniary losses and to vindicate the plaintiff’s violation of possession of land. Aggravated damages can be awarded where the conduct of the defendant aggravated the insult to the plaintiff as a result of injury from the tort. Exemplary damages are awarded if there are additional factors.
Craftsman Homes Australia Pty Ltd v TCN Channel 9 Pty Ltd [2006] NSWSC 519
Facts: a viewer of ACA phoned them about dodgy practices of C. ACA decided to do a story on this and investigated and found at least 4 incidences where they claimed that C had done a substandard job. To get footage, they had a researcher act as a customer. During the meeting she had with C her mobile phone rang because her husband was going to come and join her because he was interested in being part of the process. The head of C went to let in the husband who was not in fact a husband of the researcher but was a reporter of ACA. The reporter had a Handicam on his person and sat down to converse with the head and during the course of which he got up and declared he was Ben from ACA to confront C about dodgy building. C instituted proceedings for defamation and trespass to land. The imputations are that C performed substandard building work. The case is interesting because here Channel 9 managed to justify the imputations and relied on 4 different contracts in the course of which the court was satisfied that C did in fact engage in substandard building practices. In this case, there was a complete defence to a claim in defamation. The balance of the judgment is taken up with the defence of justification which was pleaded under the old s 15 which required public interest as an element of the defence and C argued there was no public interest because there were purely contractual matters.
Found: building standards are a matter of public interest and it was an unduly narrow construction of the facts to argue that it was a private matter of contract law. Channel 9 had a complete defence but they had no defence tow hat was a clear trespass to land. There was a direct interference with the use and enjoyment of land and it was clear that both the researcher and reporter went onto the property for reasons that were wholly alien to the implied license.
Exemplary, compensatory and aggravated damages were awarded ($230,000) for trespass to land. Significant damages may be awarded in such circumstances and even if the claim for defamation cannot be made out, if there is a direct encroachment on land then you can always argue trespass
Wallis v Wallis (1995) 13 SR (WA) 218
Facts: W2 was excommunicated from the Exclusive Brethren. The plaintiffs were other members who had remained in the EB. W2 took his story to Channel 9 and a story was done about the EB. As part of it, the employee of Channel 9 and W2 went to W1’s house. The proceedings against Channel 9 were settled.
Found: the district court of WA awarded damages against W2 being in the way of compensatory damages and exemplary damages. Discussed the types of damages to be awarded in actions for trespass; exemplary damages may be awarded if it appears that, in the commission of the wrong, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights. Aggravated damages are awarded by way of compensation for injury to the plaintiff resulting from the circumstances and manner of the defendant’s actions. Exemplary damages, however, are awarded to ‘punish and deter’ and are punitive in character. The same set of circumstances may justify either exemplary or aggravated damages, however.
Whiskisoda Pty Ltd v HSV Channel 7 Pty Ltd Pty Ltd, unreported, Supreme Court of Victoria, 5 November 1993, McDonald J
Facts: Channel 7’s employee went to a venue operated by W; at the premises there was nude tabletop dancing where Channel 7 wanted to explore this issue of public interest and therefore asked the employee to video the dancing. W claimed that there were signs which informed patrons that no photography or cameras were to be permitted to be used. The employee of Channel 7 claimed he saw no such signs but nevertheless concealed the camera because he thought W wouldn’t be amenable to him openly filming on the premises. The footage was taken and a story was to be mounted when W became aware of the events. They sought an interlocutory injunction to restrain the broadcast of the footage.
McDonald J: had to determine whether an interlocutory injunction should be issued. Required consideration of whether there was a serious question to be tried and where the balance of convenience lay. Refused to grant injunction; in this case there was a strong case of trespass to land which would result in non-insubstantial damages which were regarded as being an adequate remedy for W and also given the fact that there was a significant dispute as to a question of fact (whether there were signs in place).
As a general rule, as Channel 7 is the trespassor; the video taken in the course of the trespass is considered to be the ‘fruits of the trespass’. The issue here was whether the plaintiff was able to restrain the defendant who was both trespassor and broadcaster from using the fruits of the trespass. As a general rule, because trespass is a tort the principal remedy is an award of damages; but there may be circumstances in which it can be argued that an interlocutory injunction should be granted to ameliorate the effects of the trespass. This can occur where the defendant broadcaster is engaged in a continuing trespass on the plaintiff’s property or as in this case, in circumstances where the plaintiff wants to restrain the defendant’s use of the fruits of the trespass.
Continued on page 4