A tort of invasion of privacy for Australia?

By skepticlawyer

I only started properly paying attention to the ‘Pauline Hanson pictures’ scandal after reading Iain Hall’s post on whether or not the pictures do actually depict Hanson. I should add that I’m linking to Iain’s post in large part because he’s been careful to crop the image and do a proper analysis ‘for the purposes of criticism, commentary or review’, rather than just reproducing the images holus bolus (as other sites have done) and thereby inviting litigation.

Because — as should be clear — I’m almost certain this will be litigated. And not only as defamation. The tort of defamation is enlivened if the images are either (a) not of Hanson or (b) are of Hanson but have been photoshopped. The offending newspaper says it checked for the tell-tale pixellation that goes with overuse of blending in photoshop, but as someone who’s fairly handy with photoshop, I’d back myself — especially with a high quality graphics tablet to hand — to fool most people, especially once the image has been flattened.

Defamation and photoshop aside, I think there is real potential for this matter to lead to the development of a tort of invasion of privacy in Australia. England — as most people know — has already gone down that route, as Max Mosely’s recent victory in Mosley v News Group Newspapers Plc [2008] EWHC 1777 (QB) indicates. In that case, Eady J held that there was ‘a reasonable expectation of privacy’ that — crucially — extended to public figures. This ruling led to the highly unusual spectacle of the British press mounting a public attack on a High Court judge. What was particularly interesting, however, was that the ladies and gentlemen of the press found themselves friendless — the general public took the lawyers’ part. I do not often agree with Margaret Simons (or willingly link to anything in the growing Crikey cesspit), but I believe she is the only commentator who has captured exactly why. With reference to the Hanson photographs, she makes the following observation:

It is no secret that at the moment the higher courts are gagging for test cases on privacy, and the Australian Law Reform Commission report on the matter is in play. This could lead to real legal restrictions on what the media can publish. But how will the media look arguing against such restrictions when it publishes photos like this, with no good reason whatsoever other than titillation? […] I’d say that News Limited has just handed the enemies of media freedom a giant free kick. It has undermined its own campaign, its own moral standing and its own authority at a crucial time. Given that for all its faults, News Limited is one of our main defenders of press freedom, we all may live to regret this stupid, craven act of publication.

Should such a tort emerge, then it will be very interesting to see what comes of it. In Australia, the use of ‘no win, no fee’ arrangements is strictly confined (they’ll be familiar to most of our readers thanks to personal injury litigation). Although the spectre of the ambulance-chasing lawyer is by no means loved by all, I think it is important to say that ‘contingency fee’ arrangements are a vital means for poor and middle-class people to obtain genuine access to justice.

In Britain, no-win, no fee is permitted for defamation matters, which — unsurprisingly — the media hates. Their hatred notwithstanding, the English Bar Council is surely right to point out the following:

“Conditional fee agreements have provided access to justice for individuals attacked by the media. Such people could never sue before because there was no legal aid for defamation.

“Cost-capping is not a solution unless there is equality of arms on both sides. One possible solution is success fees staged according to the moment when the action settles.

“This would encourage the media to settle meritorious claims at an early stage”

When new torts emerge, it’s common for the powers that be to allow ‘no win, no fee’ arrangements initially in order to ensure the law develops quickly, so that principles are solidified. I have no doubt the press will howl as hard in Australia as they currently are in Britain over this sort of development, but there is such a thing as wearing out your welcome. Never as vainglorious or toothy as the British Red Tops, the Australian media have — thus far — avoided the fate of their British counterparts. That said, there have been some instances where they have sailed perilously close to the wind. I’m old enough to remember what A Current Affair did to the Paxton family (there’s a useful chronology here), and have no doubt that the media equivalent of an ambulance chasing lawyer would have come in very handy at that point — for Shane Paxton.

If Hanson doesn’t win on defamation, she may win on privacy. And I will be one lawyer quite happy to tell media people ‘I told you so’.

UPDATE: Nick Gruen at Club Troppo has a thoughtful non-legal view, taken from a piece written by Overland’s Jeff Sparrow.

UPDATE II: In what appears to be an attempt to head the lawyers off at the pass, Margaret Simons has gone to the Press Council on the privacy issue. For my part, I think this is shaping up to be a relatively open and shut defamation case, although there is still scope for the High Court to develop a tort of invasion of privacy if the Sunday Telegraph is foolish enough to appeal.

UPDATE III: Fellow law blogger Paul has taken a careful look at just how the legal reasoning with respect to privacy currently looks in Australia, with some added thoughts of his own on how things may progress. Well worth a read.

34 Comments

  1. John Greenfield
    Posted March 18, 2009 at 6:16 am | Permalink

    Doesn’t the UN ICCPR include a “right to privacy”? If so, we’ll be getting one later this year.

  2. Posted March 18, 2009 at 10:24 am | Permalink

    I note some of the comments on the other blog, in essence the “oh gosh, we must give people privacy if we hope they will go into public life”.

    Ah huh?

    Has anyone ever taken notice of America? I know more about Bill Clinton’s penis than his wife, which, let’s face it, is pretty weird.

    Obama has still not come even close to filling his 71 most crucial positions because nominees keep dropping like flies, and Obama can’t find 71 people of the right caliber who are either a) untainted; or b) prepared to be subjected to cavity searches on their way to endorsement by the Senate.

    By this time in a new presidency, all other previous presidents had filled all roles.

    Australia has always been less exuberant about other people’s dirty underwear, and that’s a good collective quality. Eg, to this day the sexual shenanigans of pollies are not plastered across our papers, unless a criminal charge has been made, and even then the details are reported in a less lurid manner than they would be for anyone else. (Possibly the habit was entrenched when Hawke was around, when every journalist in the country knew that Hawke was no poster boy for husband or father of the year, but they all kept quiet, not a peep. And that was AFTER Blanche’s biography was published, in which it was made very clear that the Hawke was a big faithless floozy.)

    Don’t know what any of that means.

    Do we scrutinize our public figures too little?

    Do we give them the benefit of the doubt, when really we should be less forgiving of their indulgences, especially at the cost of taxpayers (eg, our new GG)?

    America might be too overboard with the intrusions, but maybe we under cook it, to the detriment of public discourse and credibility.

  3. Posted March 18, 2009 at 12:24 pm | Permalink

    The hounding of the Paxton family was disgusting. I’m glad you brought that up, SL.

    Caz, I reckon you’d change your mind in five minutes flat if you had media hacks parked on your front lawn, up trees peering into your backyard, sifting thru your garbage, harassing your children etc etc etc. No one deserves to be treated like that.

  4. Posey
    Posted March 18, 2009 at 3:42 pm | Permalink

    Privacy doesn’t really encompass the wrongness or crassness of News Ltd’s reflex publication of these photos, but I guess law has to find its niche and angle.

    People who normally don’t follow the real (i.e. important) news as usual and right on cue were the first to tell me about this. None of them objected to the publication of these photos; rather they savoured Ms Hanson’s humiliation, for two reasons mainly. They’d rightly abhorred her politics for a long time, because they were Aboriginal. And/or being aspirational working class doing relatively well, they had contempt for her because she has long been considered an ageing female loser so even more fair game now. In both cases, simply getting just what she deserved, they reckoned.

    I’d also make the point that Jeff Sparrow’s Crikey take on Ms Hanson was, if I remember correctly, up until now and certainly at the height of her political support, uniquely that of Margo Kingston. Left sects such as one that Jeff belonged to and just about every commenter you could categorise as left at the time, exclusively played the race rather than the economic card in their explanation of what she represented. All of which was rather ironic for all those very same lefties and self-described Marxists who from the other side of their mouths continually decried identity politics as being a diversion from the class struggle.

    I always thought that Margo Kingston got it just right about Pauline Hanson and it is poetic justice, if a little sickening, to see everyone from Nicholas Gruen to Jeff Sparrow endorsing her perceptive take so many years down the track when it no longer means anything politically except historically.

  5. Posted March 18, 2009 at 3:52 pm | Permalink

    Melaleuca – change my mind about what?

    I didn’t express a view one way or another.

    I’m not a public figure, and if I was, I hope my personal integrity would remain intact, that is, unlike all the dirt that you and I will never ever know about our political, business and community leaders. Just don’t ever complain about them! That’s what you get when there’s no scrutiny at all.

  6. Posted March 18, 2009 at 3:52 pm | Permalink

    The Sunday Telegraph has so cooked its goose with this. I’ve not seen such a litigation trainwreck in a very long time. After this is over, Hanson can forget politics — she’ll be very rich indeed. Not only am I now satisfied that Iain’s argument that the pictures aren’t her is true, I’m also satisfied that they’ve been photoshopped. If I could get a high resolution set of the original graphics, I think I could prove it, too.

  7. Posted March 18, 2009 at 3:54 pm | Permalink

    I’m not sure it is of Hanson. I looked at it hard yesterday and, tho’ there’s a striking resemblance, the mouth is a little too wide and the nose is a different shape.

    Considering the misuse that News Ltd habitually makes of the freedom of ‘the sacred press to besmirch anyone they like’ that it’s them — and they have always been resolutely anti-Hanson — who’d precipitate this sort of tort law.

  8. Posey
    Posted March 18, 2009 at 4:01 pm | Permalink

    It’s funny, while I also abhorred her politics, I shared some of the understanding, not exactly empathy, I can’t think of the exact word, that Margo Kingston had towards Pauline Hanson. And yes, I agree, SL, this woman continually falls on her feet, goddam it, and given her background and a lot of what drove her fury and outrage, I can’t help (mad, I know) feeling a little pleased that she may win some $’s and claw back some of her dignity from this latest imbroglio.

  9. Posted March 18, 2009 at 4:15 pm | Permalink

    Waterford in the Canberra Times captures the guts of the matter better than most:

    “But big media is deeply compromised by the behaviour of some of their organs. It is the primary reason why politicians, judges and others are able to resist greater scrutiny of government and public institutions and public figures by journalists and citizens. Tabloid television, celebrity journalism and the hypocritical and shameless exposure ”journalism” exemplified by the Hanson episode sit uneasily alongside claims of acting in, or pursuing the public interest. So, alas, do the profits from it.”

    http://tinyurl.com/cfxaba

    So, which is worse, the initial publication of the photo’s or A Current Affair now offering a $10,000 reward to whoever will lead them to the real woman in the photo’s. “We will hunt her down”. Wow.

  10. Posted March 18, 2009 at 4:30 pm | Permalink

    Add Waterford to Simons, Caz, although as far as I’m aware Simons was first to spot the wider implications of this.

    Really and truly, what were they thinking at the Sunday Telegraph? Did they make no effort to obtain the ‘originals’ (I’m betting there are none, FWIW), or to check Johnson’s bona fides?

  11. Caz
    Posted March 18, 2009 at 5:14 pm | Permalink

    SL – well, ACA are slow learners, they’ve already defamed a woman who may or may not be real, and they have already suggested that *she* was part of a deliberate fraud, which all in all, is pretty gobsmacking.

    And yes, why hasn’t anyone asked to see, and thereby be able to date the original prints? Of course, it would be a useful to compare to the digital version too!

    If the guy just happened to be doing this recently, then the originals should be right at hand.

  12. Posted March 18, 2009 at 5:31 pm | Permalink

    Caz says:

    “Just don’t ever complain about them! That’s what you get when there’s no scrutiny at all.”

    I’m sorry to hear that you are unable to differentiate between an unnecessary invasion of privacy, like the publication of nudey pics taken with an expectation of privacy, and the legitimate scrutiny of public figures.

  13. Caz
    Posted March 18, 2009 at 6:03 pm | Permalink

    Melaleuca – which is still not anything that I have said. Your comprehension skills aren’t something I can address here.

  14. Posted March 18, 2009 at 6:19 pm | Permalink

    A comment I made over at LP that’s worth repeating here:

    I think it is worth pointing out that the Sunday Telegraph and the Daily Telegraph are different entities, staffed by different people. Importantly, they have different editors. It was the Sunday Telegraph editor who made the publication call, not anyone at the Daily Telegraph.

    Andrew Bolt and Tim Blair — while they have happily criticised a stablemate within News Ltd — have also done so as employees of different newspapers. I know it is fashionable to impute identical views to the staff at a given media organisation (delivered, of course, from editorial/Rupert on high), but this is simply not the case. I carry no great brief for journalism or journalists (I’m a lawyer, go figure), but it is important to remember that people in other parts of News Ltd are likely utterly mortified at what the Sunday Telegraph has done.

  15. Posted March 18, 2009 at 7:23 pm | Permalink

    Just a thought given that my suspicions that the photo was of somebody OTHER than the perilous Pauline…

    What about the lady in the photos? How would YOU like to suffer being the butt of Pauline jokes from the people that know you and recognized your photo from the dim dark ages? Especially if she hates Pauline’s policy positions!

    It’d be sweet if that lady could sue the journos for something!

  16. Posted March 18, 2009 at 7:28 pm | Permalink

    If she’s in Australia, then I suspect she has grounds to sue under the Privacy Act. At the moment the media gets an exemption under the privacy legislation (yet another exemption they do not deserve — they scoot around s52 TPA as well). My very deep suspicion, however, is that the image was sourced from a pr0n site somewhere and then doctored. And that ‘somewhere’ could be anywhere.

  17. Caz
    Posted March 18, 2009 at 8:08 pm | Permalink

    Dave – well, I’d think she’d have as good a case of any of successfully suing A Current Affair if they “hunt her down” … assuming she exists … and it does seem probable that there is a doppelganger out there, who, regardless of politics, has already been splayed across the media and doesn’t wish to be further splayed or identified.

    SL – Inventive viewers of ACA have are already scouring the Internet, with a notable emphasis on Russian dating sites and porn, etc. No one seems to be looking around their own neighborhood. So much for old fashioned detective work.

    I think it unseemly that the media are now seeking to “expose” a women of whom they know nothing (her circumstances now, for instance), and they are doing it for sport.

    Or the alleged woman, who the heck knows?

  18. Posted March 18, 2009 at 8:40 pm | Permalink

    I realise that in giving something of a backgrounder on privacy, I’ve done nothing on defamation, which — at this stage — is the substance of Hanson’d suit. Broadly speaking, a publication will be defamatory if it tends to injure reputation by:

    * disparaging a person;
    * causing others to shun or avoid a person; or
    * subjecting a person to hatred, ridicule and contempt.

    If an individual is defamed, then he or she has a right to damages for the injury to reputation, as the purpose of the tort is to vindicate and protect reputation. The real danger here (which Mark has already touched on) is malice, which of course will turn on the evidence tendered at trial. ‘Malice’ means ill will or spite towards the person defamed, resulting in publication for an improper purpose, or without an honest belief in the truth of the publication.

    If a defamatory publication is found to be malicious, then the defendant will not be able to claim the defences of fair comment or qualified privilege. A malicious publication may give rise to aggravated damages (ie, increased damages because of the damage to reputation and personal hurt). Conversely, an absence of malice may be an argument for mitigation of damages.

    As someone asked over at LP, how can a person argue for defamation and invasion of privacy simultaneously? Lawyers get around this problem by arguing ‘in the alternative’; that is, by first arguing that the publication is defamatory, and by arguing in the alternative that the publication invaded the plaintiff’s privacy. Of course defamation arguments should be presented first, as they are the strongest. That said, privacy is worth raising, for the simple reason — as Margaret Simons pointed out — courts are looking for a test case.

  19. Caz
    Posted March 18, 2009 at 9:16 pm | Permalink

    As the Canberra Times piece noted, demonstrating malice – in relation to any case that Hanson might bring – is pretty much a slam dunk.

    For the alleged doppelganger, the new witch hunt set off by the electronic media reeks of defamation.

  20. Posted March 18, 2009 at 9:31 pm | Permalink

    “Melaleuca – which is still not anything that I have said. Your comprehension skills aren’t something I can address here.”

    Well, since no one on this thread is saying anything about genuine public interest scrutiny being an unacceptable invasion of privacy I must admit I do find your complaints incomprehensible 🙂

  21. Posted March 18, 2009 at 10:47 pm | Permalink

    Having written a lengthy comment on another thread, I’ve now got quite a few things to organise this afternoon, including the small matter of making sure Oxford University pays me for the teaching I did this term, so I’m likely to be out for a bit. Added to this, LE has headed to the hills for a weekend away and DEM is currently escorting her mother around Scotland. This means there’s likely to be no admins around for long periods.

    So play nice 🙂

  22. Caz
    Posted March 19, 2009 at 1:21 pm | Permalink

    Mela – I haven’t complained either. I’ve twice noted that you’ve attributed opinion to me that are not my opinions!

    However, my comprehension skills are suddenly failing too:

    “genuine public interest scrutiny being an unacceptable invasion of privacy”

    I have no idea what that means, or why anyone would be commenting on it.

    There’s unacceptable invasion of privacy and there’s genuine public interest scrutiny, but I don’t see that public interest scrutiny can possibly be an unacceptable invasion of privacy, which are your words.

    Got me beat.

    Do I think the paper should have published the photo’s: no.

    Do I care that they did: no, not really; yes, now that Hanson will be very, very rich, the only saving grace being that this time it won’t be our money. I find it repugnant that someone is so lavishly financially rewarded for having made a profession of being crass and ignorant and bigoted. Others might be happy that the world works in such a perverse way, but I can see no merit in it.

    Now that we know a well known and notorious local paparazzo is behind the photo’s there might be criminal charges some time. I feel very sorry for the guy who allowed himself to be sucked into helping the low life photographer.

  23. Jack Robertson
    Posted March 20, 2009 at 4:34 am | Permalink

    Posey @ 5 re: Margo Kingston and Pauline Hanson, that’s an acute and generous application of corporate memory. Good on you.

  24. Posted March 20, 2009 at 11:19 am | Permalink

    G’day – I’ve had a go at pulling together the current state of Australian authority here.

    This is a very interesting area. I suspect we will see legislative intervention before the High Court gets another crack at it, but I hope not.

  25. Posted March 20, 2009 at 10:19 pm | Permalink

    Paul, thanks for that — I’ve added an update to the post in the hope that people will check it out. Apologies for not being around much today, but various commitments — sporting and academic — have caught up with me pretty comprehensively in the last few days.

  26. Petierla
    Posted March 21, 2009 at 9:35 am | Permalink

    Correct me if I am wrong, I believe to defame some one you must be proved to have lowered the public perception of someone’s reputation of to have made them an object of ridicule. This is Pauline Hanson for a deities sake. She has made her career spouting the most abhorent, purile, populist rubbish. She already is an object of ridicule, have a look at the Mardi Gras.The release of these photos have done nothing but increase her profile in this campaign. I fail to see where the damage has been done. Why the need for a defamation case if the action of defamation has actually improved the “victim’s” situation. Persuing any legal action is only going to increase the benefit, and therefore is in Hanson’s interest. Can the other candidates demand equal time?

  27. John Greenfield
    Posted March 21, 2009 at 11:59 am | Permalink

    I donated $200 to help fund one of Pauline’s legal to-dos five or so years ago. One wonders if the odious mea-culping hypocrite Luvvies – particularly numero uno Sparrow – would chuck in a few bucks for any legal cases she may fight over this.

    After all, it was Sparrow and his repellant ilk who have spent so much energy demonising the woman that led to this treatment.

  28. John Greenfield
    Posted March 21, 2009 at 12:05 pm | Permalink

    I am on the public record as being one of the very few – educated – Pauline supporters right from the get-go. Before I returned from London, I had been horrified by the ‘Hansonism’ phenomenon, especially given how it was reported in the foreign press.

    However, on terra australia, it took me about three days to work out that in fact the whole hate-fest was a white bourgeois-left cult against real working class people. The depth and passion of their fury towards those who could not give a tinker’s cuss about Keating’s Luvvies was a real shock.

    The years since have done nothing other than confirm just how truly rancid these self-annointed saints of progressivism are. Thank god, their cultural influence has long turned flaccid.

  29. Posted March 21, 2009 at 3:06 pm | Permalink

    I am on the public record as being one of the very few – educated – Pauline supporters right from the get-go.

    I’m not. But I think she got a raw deal from the media especially RupertCorp. Methinks he doesn’t wanna upset the Chinese.

    She has a right to speak her piece and run for office. In fact it’s the best thing. One Nation have one brain cell between them and they always leave it at home. 🙂

  30. Caz
    Posted March 22, 2009 at 1:54 pm | Permalink

    Petierla – indeed, you have a good point, but the case is now along the lines of fraud (one set of parties), with intent to cause her public humiliation (the newspaper).

    If the point was to damage her high moral standing, it missed the mark, since Hanson has never claimed to be more ethical or moral than anyone else.

    I have no idea what that adds up to in legal terms, but I’m still betting that the paper will settle out of court, so we won’t see any legal boundaries tested, nor any intriguing defence arguments over whether or not anything could possibly damage a woman who is her own worst walking, talking headline.

  31. Posted March 22, 2009 at 4:53 pm | Permalink

    Correct me if I am wrong, I believe to defame some one you must be proved to have lowered the public perception of someone’s reputation of to have made them an object of ridicule. This is Pauline Hanson for a deities sake. She has made her career spouting the most abhorent, purile, populist rubbish.

    Sorry Caz, this is not a good point at all. If it were there would be different sets of legal rights for people based on their political beliefs. The day we do that is the day we kiss goodbye to the rule of law in Australia (or in any other country that tries it on).

    Remember when some Aborigines had a go at Nicole Kidman for using a didgeridoo on the grounds that women who use them become sterile? That’s quite possibly stupider than anything that Hanson has said, but if the Aborigines who said it were ever charged with an offence in a court of law, or were plaintiffs in a civil matter, the essence of the rule of law is that their case is assessed on its merits, not the merits they may have as human beings, or what they believe in their spare time.

    The paper has now formally apologised, both in an article and in a major editorial. This would have been done after legal advice, and is undertaken in order to mitigate the damage. Unfortunately for the paper, the pics were up for the best part of a week and Hanson can make a pretty strong case that her electoral chances were harmed in what is a very socially conservative seat (I used to teach in Beaudesert). The papers — obviously enough — only reported comments from those electors in Beaudesert who didn’t think publishing the photographs would have any effect on their vote. If those voters constitute the majority in a seat like Beaudesert, I’ll eat my wig.

  32. Posted March 22, 2009 at 5:30 pm | Permalink

    “Correct me if I am wrong, I believe to defame some one you must be proved to have lowered the public perception of someone’s reputation of to have made them an object of ridicule. This is Pauline Hanson for a deities sake. She has made her career spouting the most abhorent, purile, populist rubbish.”

    So what? Hanson is entitled to the same legal protections as everyone else. Surely you are able to comprehend basic legal principles. How many times must we make this point before it sinks in, Caz?

  33. Caz
    Posted March 22, 2009 at 6:04 pm | Permalink

    SL and Melaleuca – no idea why you think that was my comment, it wasn’t.

    And, to this point, I STILL haven’t suggested, hinted, or stated, explicitly or implicitly, that Hanson doesn’t deserve the same legal protections as anyone else.

    You both wish I had said these things, and are now even attributing (and quoting!) other people’s comments to me!

    My comment is at 31, and I did NOT support the previous comment! I said it was “a good point”, as in, “interesting”, or “a different way to look at it, I then when on to explicitly DISAGREE that the point had any validity at all.

3 Trackbacks

  1. […] script I want to recommend Helen Dale’s excellent piece that looks into the legal implications of this matter over at Sceptic […]

  2. […] There is a lot of discussion at the moment about the question of whether Australia is moving towards a tort of ‘invasion of privacy’ as a result of the publication of compromising pictures supposedly of Pauline Hanson. There is a useful note on recent UK developments in the Max Mosley case and some speculation about the Australian position at skepticlawyer. […]

  3. […] (which they are not), it is arguable that they were a strong invasion of privacy. And as lawyer Helen Dale argues, this matter could be the test case which has the potential to lead to the development of a […]

Post a Comment

Your email is never published nor shared. Required fields are marked *

*
*