Intellectual Property Law Update - The ultimate balancing test - privacy v freedom of expression

Intellectual Property
List G Mr 8284
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At the time of writing, the Commonwealth Attorney General has made no comment on the Australian Law Reform Commission’s final report on Serious Invasions of Privacy in the Digital Era (ALRC Report). It therefore seems unlikely that the federal government will, at least in the short term, enact a statutory civil cause of action for serious invasions of privacy.

Background

At the time of writing, the Commonwealth Attorney General has made no comment on the Australian Law Reform Commission’s final report on Serious Invasions of Privacy in the Digital Era (ALRC Report). It therefore seems unlikely that the federal government will, at least in the short term, enact a statutory civil cause of action for serious invasions of privacy.

If this is correct, then the law relating to privacy will continue to be developed incrementally through the superior courts of Australia. Although the balance between privacy interests and freedom of speech has yet to be argued in any superior court where the matter has proceeded to judgment, it is inevitable that it will be, with the resulting case law providing an important piece in the development of privacy law in this country.

To predict the process Australian courts will adopt requires an understanding of the following three matters:

  • the nature of the competing public interests;
  • Australia’s international obligations; and
  • the UK jurisprudence on the nature of the balancing exercise between the two interests.


The competing public interests

The interests in privacy and the interest in freedom of expression are both public interests, even though claims in privacy are necessarily made by the individual, and claims supporting publication through freedom of expression are often made by media corporations.

Although a personal right of human autonomy, at its core, privacy is also of crucial public interest. This is true of many personal rights, as was highlighted by Gaudron and McHugh JJ in Plenty v Dillon, when their Honours said:

If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a personal right.

The public interest in matters of confidence, or what we now describe as privacy interests, was discussed in Attorney General v Guardian Newspaper Ltd (No 2) (Spycatcher) where Lord Goff noted that “there is a public interest that confidences should be preserved and protected at law.”

Although of high public importance, privacy is not an absolute value or right that necessarily takes precedence over other values of public interest. One of the enduring values of public interest is freedom of speech. As recently as 2013, French CJ in Attorney General (SA) v Corporation of the City of Adelaide said:

Freedom of speech is a long-established common law freedom. It has been linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information.

Freedom of speech has been described as an “essential element in the constitution of an ordered society or a society organised under and controlled by law”. However freedom of speech is also not absolute. The guarantee of freedom of communication, speech or expression “does not postulate that the freedom must always and necessarily prevail over competing interests of the public”.

Lord Goff in Spycatcher observed that when the two competing public interests are present the court will be required to carry out a balancing operation, weighing the two competing interests:

[A]lthough the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply … to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.

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List G Mr 8284
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Michael has a diversified commercial practice, which includes general commercial law, intellectual property and trade practices, trade secrets, privacy, confidential information, media, data protection, cyber law, class action and professional liability.

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