All this fuss about Barry Spurr’s dodgy emails raises some seriously interesting legal questions.

Let’s be clear, Barry Spurr’s choice of language suggests that he’s not the ideal candidate to review our kids’ English curriculum. If you’re not maligned by his emails then you’re probably in the minority. But that’s not what we’re talking about here.

Spurr is seeking injunctions against the publisher of his emails, news website New Matilda. He wants them to hand over all the email booty, take down its publications to date and stop any new publications.

What we’re interested in is whether he can do all this. If he wins, there could be big ramifications for publishers. But as the law currently stands, we reckon he’ll struggle. Here’s why.

  • The Privacy Act isn’t likely to help Spurr. The New Matilda is probably exempt as either a small business or a media organisation, or both. And in any case the material in his emails is unlikely to comprise ‘personal information’ as defined in the Act.
  • Breach of confidence is perhaps Spurr’s best argument, but even then it’s a stretch. He’ll have to prove the emails had the necessary quality of confidence, relying on cases about sex tapes to support his claim. Spurr’s emails were personal, but probably not confidential. They’re not marked as such and there would be nothing to stop the recipient disclosing them. They were also sent from his work email address, not a private address.
  • Invasion of privacy is the last possible basis for Spurr’s injunction. Except that no superior court in Australia has recognised that such a tort exists. If it does, it will undoubtedly include a balancing of the right to individual privacy against the public interest in disclosure. There is a genuine basis for public interest in Spurr's opinions on race and gender. That’s going to stymie Spurr even if he can convince the court to recognise the cause of action.

Spurr dropped his initial claim to get hold of New Matilda’s source. Lucky for the source, as they could face criminal prosecution for their actions. Freya Newman, the girl who blew the whistle on the secret design school scholarship granted to Tony Abbott’s daughter, is facing sentencing in a criminal action for unauthorised access to a student database. New Matilda’s source, if identified, could face a similar prosecution.

None of this is going to undo the damage to Spurr. If you ask us it seems like Spurr is flogging a dead horse. Or the horse has bolted. Maybe he’s flogging a bolted horse.

The case is set to be heard in December.