Privacy law has hit the news again and it has it all –racist and sexist comments, allegations of hacking and politics.

Emails from Prof Barry Spurr, a consultant to the Federal Government’s English curriculum review, and colleagues were published last week, which reveal racist and derogatory statements, such as ‘Abo-lover’, ‘Mussies’ and ‘Chinky-Poos’.   The Prof was subsequently suspended by the University of Sydney pending an investigation.  You can see the report that broke the story here and the transcripts of the emails here.

Barry Humphries weighed in on the Prof’s side (see here), while others were more critical. In response, the Prof said that these emails were nothing more than a ‘whimsical linguistic game’ and his lawyers argued that he was ‘collateral damage’ in a political attack on the Federal Government by New Matilda over the national curriculum review (see here).

Swift action – an interim injunction

Prof Spurr took action. He commenced a proceeding in the Federal Court on 22 October 2014 and obtained an interim injunction restraining New Matilda, and its editor, Chris Graham, from further publication of the material. In doing so, he alleged that the emails had been hacked from his computer (which was denied by New Matilda).

The Prof also sought orders that Mr Graham disclose the source of the leaks. As we discussed here, journalists hate that.  Mr Graham is reported as saying “Hell will freeze over before [that] happens“. It appears that this aspect of the case has now been dropped.

New Matilda and Mr Graham have a reputation in publishing leaks. They published the story about the Prime Minister’s daughter receiving a scholarship from a Design School. As an aside, the person who leaked the information to Mr Graham has recently pleaded guilty to unauthorised access to a computer.

The Spurr matter was brought back before Justice Wigney on 23 October 2014.

Under current Australian law there is no separate action for a breach of a tort of privacy. You need to rely on the existence patchwork of laws. This has been discussed in detail in the Federal Government’s Discussion Paper released on 31 March 2014 on ‘Serious Invasions of Privacy in the Digital Era’ (see here).

Therefore, Prof Spurr’s action was two pronged, namely that the publication of the emails was a breach of confidence and also a breach of the Privacy Act 1988 (Cth).

Breach of confidence – are the emails confidential?

The breach of confidence argument is commonly run in cases where confidential and/or sensitive material is provided to the media.

To be successful you must prove that the information has the necessary quality of confidence, was imparted in circumstances which import an obligation of confidence (or obtained surreptitiously) and that there has been threatened or actual unauthorised use.

The issue here appears to be whether or not there is anything inherently confidential in Prof Spurr’s email banter with his colleagues.   We assume that New Matilda will argue that there is nothing so confidential in the information.

New Matilda may also argue that even if the material is confidential, there is a strong interest in the public being provided with this information (given Prof Spurr’s involvement with the curriculum review). However, as the law currently stands in this country, it is not clear that there is a public interest defence in relation to a claim for breach of confidence.

The Prof has been directed to file a statement of claim, which will need to identify the confidential information with some specificity.

Breach of the Privacy Act (PA)

The PA claim is interesting. The PA applies to a limited type of entities (such as organisations that turnover more than $3M a year) and relates to the ‘Australian Privacy Principles’. Very broadly, the principles are in connection with the collection, holding, use or disclosure of personal information.

Under s98 of the PA, where that Act has been breached, either the Australian Information Commissioner or a person can seek an injunction restraining a person from engaging in conduct or requiring a person to do any act of thing.

This provision was used in Smallbone v New South Wales Bar Association [2011] FCA 1145, where the Federal Court restrained the Bar Association from making any adverse determination on Mr Smallbone’s application for appointment as Senior Counsel until after he had been given access to the information the Association had collected about him.

There are a couple of hurdles facing the Prof in this case:

  1. Whether New Matilda is in fact covered by the PA – it is only a small news organisation, so it may not have the required turnover;
  2. Was the information ‘collected’. If it was obtained surreptitiously, it may be that it was not ‘collected’;
  3. There is an exemption under s7B of the PA which applies to acts done for the purposes of journalism.

Based on what we currently know (and there is no published transcript or judgment that we have seen), it does seem like this is the weaker of the two actions.

Your options when the media publishes sensitive material

When a media outlet threatens to publish, or does publish, material that could be confidential you have a few options. Your options include:

  1. Weathering the storm on the basis that today’s newspaper will be tomorrow’s compost (which can be a bit difficult for digital media);
  2. Battling it out in the public arena – and hope that your PR team can get your message across;
  3. Seeking legal redress.  If you choose this option it is likely that you will have a fight on your hands – as journalists value free speech very highly. There is also a risk that the dispute will draw more attention to the issue.  However, if it is worth fighting for, sometimes you do not have much of an option.

Prof Spurr’s matter has been listed for an early trial commencing on 8 December 2014. This could potentially be a very interesting development in privacy law and confidentiality – so we will be watching it closely … as will the media.