Today, Australia welcomed into the world a new statutory tort of serious invasion of privacy.
It arrived with little fanfare from the media or social media platforms but like any new arrival it deserves to be celebrated. The right to privacy is enshrined in the Universal Declaration of Human Rights adopted by the United Nations on 10 December 1948, and the Australian Law Reform Commission recommended the introduction of the statutory tort back in 2008 and again in 2014. It adopts a number of principles established in the UK and European privacy laws, as well as the right to seek injunctive relief and the right to sue over false and true privacy intrusions.
More controversially, it includes a journalist exemption. The journalist exemption was not recommended by the Australian Law Reform Commission in 2014 and appears to have been introduced due to last minute lobbying by the media. This is a key provision of the act and will be an important provision in the development of the statutory tort of invasion of privacy in Australia.
Importantly, the newspaper exemption only applies to established media and accredited journalists, so citizen bloggers and social media platforms beware. It also only applies to news, current affairs or opinion on news and current affairs.
What constitutes news for the purpose of a claim will need to be determined by the judge tasked with applying the new law. An article about matters of local and world news, or an exposé of wrongdoing, will clearly qualify as a news item, but magazines and online media which trade in tittle-tattle of the rich and famous, or of those associated with them, should watch out. The days of publishing gossip about who is dating who, where they live, their emotional state, medical information or where the children go to school are in my opinion going to be off limits.
Who will be right will be a matter for the courts to decide. Watch this space.