Kicking at the cornerstone of democracy The State of Press Freedom in Australia 2012
THE YEAR IN THE LAW Peter Bartlett This has been a challenging year for the media, with traditional business models thrown into turmoil by new media platforms. There was little cheer for the media on the legal side, either. While there were not too many defamation claims that went to judgment in the last 12 months, the media did not do too well. The Ten Network went down for $85,000 to Nicole Cornes (former Labor candidate and wife of AFL media personality Graham Cornes), 2UE for $176,296 to former Guantanamo Bay inmate Mamdouh Habib, Alice Springs News for $100,000 to real estate agent David Forrest, and Yahoo! for $225,000 to former Yugoslav music promoter Michael Trkulja, for linking a Herald Sun article about him being shot in 2004 to a website called “Melbourne Crime”. Significant costs were awarded on top of these defamation claims. And after a five-week hearing, The Australian Financial Review had a partial loss to former bankrupt solicitor Bryan McMahon.
A cause of action for invasion of privacy The question of whether Australia should implement a statutory tort for invasion of privacy continues to be debated. In its 2008 report, the Australian Law Reform Commission (ALRC) considered the existing patchwork of privacy protections, and recommended that a statutory cause of action for serious invasions of the privacy of natural persons be introduced by federal legislation. In 2009 and 2010, the New South Wales and Victorian Law Reform Commissions respectively made similar recommendations. In September 2011, the Department of the Prime Minister and Cabinet released its Issues Paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, and invited submissions to inform its response to the Law Reform’s proposals. The many submissions made to date appear to support the new cause of action proposed. The Victorian privacy commissioner argued that existing privacy laws are fragmented and inadequate to meet the privacy challenges faced by technological developments. My view remains that the very limited number of complaints to the Australian Press Council and Australian Communications and Media Authority (ACMA) do not warrant a statutory tort. It’s like cracking a nut with a sledgehammer. I found that while the reports from the various law reform commissions contain excellent analyses of the history of privacy law in Australia, and the laws as they stand in the US, UK and Europe, they fail to recognise sufficiently that the US and Europe are in a totally different situation to Australia. The US has a strong constitutional protection of freedom of speech. Europe has the European Convention on Human Rights. The UK has the Human Rights Act. The reports’ authors make a huge jump from thorough historical analysis to claim that we need a statutory tort in Australia. Public discussion and submissions are continuing, but it seems likely a statutory cause of action for invasion of privacy will eventually be introduced here. It’s to be hoped any such legislation will balance a person’s right to privacy with the broader public interest and the protection of freedom of expression. In my view, such a law will not be used by the less privileged people in our society. It will be used by those involved in wrongdoing, those with financial muscle or those that seek to use the media one day but want privacy the next day.
The Finkelstein Inquiry After much anticipation from media stakeholders, Ray Finkelstein QC delivered the Report of the Independent Inquiry into Media and Media Regulation in February 2012. It provides a good academic and judicial analysis of the current state of media regulation in Australia. It also includes a detailed analysis of public perception of media performance in recent decades, and reveals the public’s somewhat substantial lack of confidence in the Australian media. When Finkelstein assessed Australia’s current assortment of external and self-regulation mechanisms, he concluded they are not enough to keep the media accountable. His report proposes two key changes. Firstly, it recommends establishing a new body, the News Media Council (NMC), to replace the Australian Press Council and subsume ACMA’s functions for standards and complaints. This body would have jurisdiction in relation to news and current affairs coverage on all media platforms. It would be responsible for setting media standards and handling complaints where those standards are alleged to have been breached. Unlike the current Press Council, the NMC would be government-funded, though Finkelstein is emphatic that it should be free from government influence. While having the NMC would provide a clearer and coherent form of regulation, there’s no guarantee the government will implement the proposal. The NMC would require quite substantial government funding. Indeed, the NMC would require an enormous amount of 4