A test of the new tort for serious invasions of privacy will have to wait, with a potential first case settling out of court this week.
Brittany Groth – the wife of Victorian Liberal parliamentarian Sam Groth – had been poised to test the new federal laws after Melbourne’s Herald Sun newspaper published articles that suggested the couple’s relationship may have commenced when she was a child.
While Sam Groth had instituted proceedings for defamation against the publishers, reporter Stephen Drill and Herald Sun editor Sam Weir, Brittany Groth opted to launch the first test of the statutory tort for serious invasion of privacy.
However. this week The Herald Sun published an apology and the matter was settled out-of-court, leaving the new tort untested.
The law, passed in June, grants the right to sue anyone – person or entity – for any serious invasions of privacy, however Parliament exempted law enforcement, intelligence agencies, minors….and journalists.
The decision to extend protection to journalists’ has been cause for serious debate in the legal profession – though unsurprisingly this has not featured in the media.
QLS Proctor invited four of Australia’s pre-eminent legal experts on media law to share their perspectives on legislative protections to journalists and whether the exemption is justified and safe in the hands of a profession cycling through massive change and facing increased scrutiny.
Those raising concerns include recently retired Queensland Supreme Court Justice, media law specialist and current PhD candidate, Peter Applegarth KC AM, University of Sydney Law School Professors Barbara McDonald and David Rolph, and leading Sydney-based privacy, media and defamation law silk Matthew Richardson SC.
Mr Applegarth said torts to protect a person’s privacy had long been a feature of Australian laws, such as trespass to land, private nuisance and battery.
However, he said those torts had “left large gaps in protecting individuals from intrusions upon their seclusion and against the misuse of private information.’’
“A new statutory cause of action for a serious invasion of privacy was passed… in November 2024, based on the 2014 report of the Australian Law Reform Commission,” Mr Applegarth said.
“It has a fault element: intent or recklessness.
“Regrettably, the law departs from the ALRC model by creating an exemption for journalists and their employers.
“That unprincipled exemption, inserted without justification, subverts the work of the ALRC. The media exemption means that the general law will have work to do in Australia for media intrusions upon privacy.
“Australian lawyers and judges will have to look across the ditch to New Zealand for guidance, a jurisdiction where the tort of misuse of private information has existed for more than two decades.”
The new tort defines protected journalists under Clause 15(1)(a) of Schedule to of the Privacy and Other Legislation Amendment Act 2024 (Cth).
The word ‘journalist’ is defined as follows in clause 15(2) as a person who:
a. works in a professional capacity as a journalist; and
b. is subject to: (i) standards of professional conduct that apply to journalists; or (ii) code of practice that applies to journalists.’’
The Australia’s Right to Know Coalition campaigned strongly for the exclusion of journalists prior to the passing of the Bill.
Coalition members include media heavyweights News Corp (publishers of newspapers including The Australian, The Courier-Mail, and Melbourne’s Herald Sun, as well as the nationally broadcasted and online Sky News Australia), the ABC, Channels Nine, Ten and Seven and others.
Also represented, Australian journalist professional standards and trade union organisation – the Media and Entertainment Arts Alliance (MEAA), which requires members to adhere to its Code of Ethics.
The Australia’s Right to Know Coalition, made a submission in support of the journalist exemption, saying that “journalism and an ability to report without unnecessary fetter, is a critical pillar of democracy.”
“Protecting journalism from claims that may limit journalists’ ability to perform this role will assist the free flow of information and the ability of the public to stay informed.
“These matters are of fundamental importance when seeking to foster a well-informed and engaged citizenry.”
University of Sydney School of Law Professors David Rolph and Barbara McDonald noted that despite their interest in the legislation, there had been little, if any, media coverage of the proposed tort and its proposed exemptions.
Professor Rolph said the legislation passed during a late-night parliamentary sitting amidst a raft of other unrelated Bills.
Professor McDonald said she was aware of a couple of news items published about reasons in favour of journalists being afforded the protections, though the addition as an exemption “came out of nowhere, really”.
Professor Rolph said the protection afforded to journalists was “unprincipled”.
“The difficulty with the media exemption is that is unprincipled. It also has no parallel anywhere in the world,” Prof Rolph said.
“The United Kingdom, Canada and New Zealand have all developed privacy protections, causes of actions for invasion of privacy and none of them have a broad-based exemption for media.
“The significant problem with the media exemption, I think, is how broad it is and media outlets are trying to argue it is not broad enough, that there may be a lack of comprehensive coverage.
“(The exemption) is very broad. It is so broad that even if the conduct of a journalist breaches an ethical code of conduct or even constitutes a crime, then an individual who has been affected by that invasion of privacy can’t sue.
“And on any analysis, that’s a very broad protection,” he said.
“Because it is invited in statute, the exemption can only be changed by statute. One of the other things, which I think is very important, is the legislation specifically preserves other causes of action, and it may be that potential plaintiffs will have to look at other causes of action like ‘breach of confidence’, things might be framed as defamation claims.
“Or, there are a whole range of other causes for action you may have to rely on, indirectly, to protect your privacy from media intrusion.”
Sydney-based barrister and media law specialist Matthew Richardson SC said his concerns surrounding the protections was that it also extended to affiliate groups, such as journalist employers, photographers and journalist assistants.
“Clauses 15(1)(b) and 15(1)(C) extended eligibility to employers, freelance, sub-contracted and assisting journalist – even while “working outside employment relationships” – access to the exemption.”
“Clause 15(d) extends eligibility to a person assisting a journalist in the person’s professional capacity. That may cover a photographic agency selling, for instance, paparazzi style photographs.
“While such an agency may argue that its core business is to assist journalists, a plaintiff might counter that such an organisation and its employees often do not even meet or talk with journalists simply on-sell product.”
In an article published on LSJ online he said, “The central battleground for this exemption is likely to be found in Clause 15(3)(a) which defines material as ‘journalistic material’ if it ‘has the character of news, current affairs or a documentary’.”
Mr Applegarth notes the exemption is not confined to reputable journalists.
“It applies to any ‘journalist’ who is subject to professional standards or a code of practice, however weak or unenforced.
“The exemption can be exploited by muckraking, self-appointed ‘citizen journalists’ who trade in gossip dressed up as news.
“The snail-like pace at which tort law in this area has developed in Australia over that period compared to England may be due to Australia’s lack of similar celebrity culture, or what many New Zealanders would regard as Australia’s lack of any celebrities or any culture.
“New Zealand does not have the same media culture as Fleet Street. Perhaps New Zealand rugby union stars are less prone to adultery than sleazy English soccer players who have contributed to the caselaw in this field. New Zealand privacy cases are few and far between.
“The low volume of Australasian caselaw on new privacy torts means that we must look to the UK, where privacy claims in the High Court far exceed defamation claims in number.
“It would be a shame if Australian courts perceived the new statutory causes of action as signalling a police choice that freedom of expression is best protected by insulating media interests and the ragtag army of ‘citizen journalists’ that are protected by clause 15 from any remedy for misuse of private information or intrusion upon seclusion.”
“To do so would be to isolate Australia from the rest of the common law world.”
Professor McDonald said the actual “immunity and exemption” given to journalists, as part of the new tort, was something Australian courts would now have to decide.
“When will journalists lose the protection?” Prof McDonald pondered.
“The immunity and the exemption that is given (journalists) is certainly something that is going to be tested in the courts.”
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