Kelly Hazell Quill lawyers in politics: Privacy plan the ultimate in anti-free speech, media lawyer says

The Australian, Sydney, July 25, 2011:

THE federal government’s plans for a new way of suing the media for privacy breaches will expose journalists and their employers to unprecedented penalties, including fines or jail for refusing to comply with court orders.

If the government’s plan goes ahead, all media outlets could be forced to publish or broadcast court-ordered corrections and apologies, and hand over some of their profits.

Courts would also be empowered to issue declarations against particular media outlets, stating that they had engaged in serious invasions of privacy.

Media lawyers said that until now no Australian government had ever tried to force these requirements on the media.

Justin Quill, of Kelly Hazell Quill, said the plan to force media outlets to publish material with which they disagreed was the equivalent of taking away the media’s right to express its point of view. “It is the ultimate in anti-free speech,” Mr Quill said.

As well as the new penalties, the government’s plan would cut across the newly enacted federal and NSW shield laws by empowering judges to order the media to “deliver up” documents — potentially exposing confidential sources. “It would mean journalists would potentially be held in contempt for refusing to discloses their sources,” said media lawyer Peter Bartlett, a former chairman of national law firm Minter Ellison.

Convictions for contempt for refusing to comply with court orders under the new privacy regime could result in journalists being given criminal convictions or jailed.

The plan would also allow courts to issue injunctions preventing the publication of news reports — and possibly entire editions of publications — if judges considered they contain serious invasions of privacy.

Mr Quill said this aspect of the plan would be widely used by celebrities and public figures and would expose the media to tactics that were not available under the normal law of defamation.

The federal government is considering a plan drawn up in a 2008 report by the Australian Law Reform Commission. It recommended that the federal government should create a statutory tort or “cause on action” that would allow people to sue each other — and the media — for serious invasions of privacy.

However, Mr Bartlett said there was a flaw in the ALRC’s proposal. He said the commission had drawn up its plan for the new civil action without first examining whether privacy breaches in Australia justified such a move.

“If you read the report, the academic analysis that justifies the conclusion is not in the report,” Mr Bartlett said.

“Where is the evidence that we need this thing in Australia?”

Mr Quill said there was “absolutely no factual basis” justifying such a sweeping legal change.

As well as the new penalties, the ALRC wants courts to be able to impose financial penalties, or awards of “damages”, as well as the much higher “aggravated damages”. Those suing the media would be entitled to these payouts even if they had not suffered any damage as a result of the media’s actions.

The Press Council failed to persuade the ALRC to include several defences for the media in the proposed tort. These would have enabled the media to avoid liability:

  • When the plaintiff has consented to the publication of the material that forms the basis of their complaint.
  • When the media can show that the material they had published was already in the public domain.
  • When the media can show that they published the material in order to show that the plaintiff had not been telling the truth.

The only defences endorsed by the commission would enable liability to be avoided if the media was relying on a legal right, such as privilege.