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[2] My mother would gently scold her father for sometimes taking a ladder and peering over the fence, training his binoculars on the horse races. She thought that this was not quite fitting; these were other people’s grounds. If he wanted to see the spectacle within, he should pay sixpence and pass through the turnstiles. My grandfather was a learned man, and I have no doubt that he knew of the case which marked a turning-point, in the courts, for the Australian law of privacy.
[3] The case concerned the racing calls made for the Wireless Station 2UE by a talented broadcaster, Cyril Angles. He too would get on a ladder, in the property of a Mr Taylor, near my grandfather’s home. With unerring accuracy, he would call the races without paying the Victoria Park so much as a halfpenny.
[4] In 1936, the Park owners sought an injunction in the Supreme Court of New South Wales against Messrs Taylor and Angles. Their claim was dismissed.[1] An appeal was immediately lodged to the High Court of Australia. The law in Australia reached one of those critical turning points.
[5] By majority, the High Court dismissed the Victoria Park appeal in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (‘Taylor’s Case’).[2] Had it been otherwise, the law of privacy in Australia would have been very different. The courts would have undertaken the task, case by case, of building a body of law to protect privacy and to afford guidance on the countervailing values that need to be weighed in extending that protection.
[6] The Victoria Park Company had attempted to induce the High Court to embrace a ‘new fangled’ legal concept. It was one that had already engaged commentators in England[3] and the United States.[4] The creative spirit had been encouraged by the then recent decision of the House of Lords in Donoghue v Stevenson.[5] In that case, Lord Esher had uttered his famous dictum: ‘any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England’.[6]
[7] In
Taylor’s Case, Rich and Evatt JJ dissented because they thought
that it was time for the common law of Australia, as declared by the High Court,
to propound a new remedy that would have the effect of defending the privacy of
the individual from serious, unwanted intrusion.
Justice Rich was obviously
shocked by a ‘curious’ 1904 English case in which a family in
Balham, by placing in their
garden an arrangement of large mirrors, had been
able to observe with impunity everything that went on in the surgery of the
neighbouring
dentist. The dentist had failed in his legal challenge; Rich J
clearly thought he should have succeeded. Interestingly, in 1937,
Rich J looked
ahead to the advances of technology that he could foresee:
[I]t is easy to believe that half a century later [the mirror owners] would be able to do all they desired by means of television. Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognise that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life.[7]
[9] But those were the days when the Privy Council
hovered over the High Court, capable of striking down legal innovations, even
those
apt for a new society with somewhat different values. Chief Justice Latham
reflected the approach of legal deference in his opinion:
However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists. [8]
[11] If only one
of the majority in Taylor’s Case had switched sides, Australian law
would have been very different (assuming that the Privy Council had not
intervened). Years later,
in the Australian Law Reform Commission
(‘ALRC’)[11] and in the
Organisation for Economic Co-operation and Development
(‘OECD’),[12] it was to
fall to me to participate in national and global efforts to fill the void which
earlier legal responses had left in the
defence of privacy.
[13] The question confronting the ALRC was whether it should recommend a general statutory right to privacy.[14] Such a statutory tort would have had certain advantages, which the ALRC acknowledged. It would have permitted courts eventually to cover almost all privacy situations, including those which had not yet become apparent. It would have given a remedy to people seriously prejudiced by intrusions into privacy. It would have allowed judges and juries to declare contemporary standards. It would have grounded effective remedies for unreasonable conduct. And it would have brought Australian law into full conformity with the International Covenant on Civil and Political Rights (‘ICCPR’).[15]
[14] Despite
three earlier attempts to introduce such a general ‘right to
privacy’ by statute into Australian
law,[16] the ALRC was unconvinced.
It regarded the idea as
too vague and nebulous. It would need to be worked out case by case as courts and administrative tribunals grappled with particular fact situations that came before them. In time, perhaps, a set of principles might be developed through this process. The limits of the tort would ultimately be fixed. How it would affect the freedom of the press, of speech and of information would only then be clear.[17]
[16] Prior to the ALRC report on privacy, in 1980 I participated in the work of an Expert Group of the OECD concerned with a new and urgent aspect of privacy protection: information privacy. The work was rendered urgent by the powerful capacities of new information technology (for example, computers, surveillance devices and telephonic intercepts). The OECD prepared Guidelines Governing the Protection of Privacy,[19] which became the foundation for Australian legislation.[20] A key provision of this legislation, reflecting the OECD Guidelines, was the right of the individual ordinarily to have access to data about himself or herself.[21] This right opened a new dimension to privacy protection, which has proved most beneficial. In a number of court cases I have called upon the OECD ‘Information Privacy Principles’, by analogy, to develop the judge-made law.[22]
[17] Useful as these Principles have undoubtedly been for establishing a coherent regime for the protection of privacy in the context of information systems, serious problems have begun to emerge by reason of the astonishing advances in information technology since 1980. Some of these problems were addressed in a second OECD Group (which I chaired) on Security of Information Systems.[23] But many other problems remain. To uphold human values in the context of new technologies (such as cyberspace and genomics), it will be vital to renew and refurbish the old principles.[24] Each one of them has to be tested against the extraordinary capacity of technology today to offer fresh ways of invading privacy,[25] and in light of new dilemmas about which suggested invasions should be allowed and which forbidden.[26] In 1999 The Economist declared that it was (already) too late. The law should give up; privacy was dead. ‘The best advice is: get used to it.’[27] Exactly the same conclusion was reached by Newsweek at the dawn of the new millennium in January 2001.[28]
[18] In some court systems, there may indeed be nothing that can be done about unreasonable invasions of privacy. But it is important to realise that in common law systems at least, it is not necessarily the case that the law will decline to intervene. The rules of the common law, and of its sister equity, have been developed over centuries by judges to respond to individual cases brought before them. If there is no settled doctrine, those judges will consider whether it is possible to derive new law, by analogical reasoning, from the old statements of the common law. It is in this way that our legal system is never, ultimately, without a solution to a legal problem. So long as it can be done consistently with the body of pre-existing legal principle,[29] and is not in breach of the Australian Constitution[30] or statute law,[31] judges can sometimes provide remedies in cases which their predecessors could not even imagine.
[19] So, if need be, cases can be brought before the courts to
address completely new problems concerning privacy, and sometimes,
the courts
will be able to provide solutions that are reasonable and just. A remedy
was found in a case concerning a radio broadcaster in Western Australia,
who was threatening to disclose the fact that a person infected
with HIV had
knowingly or otherwise transmitted the virus to
others.[32] Justice Kennedy did not
hesitate to grant an injunction in connection with an action in defamation,
which the subject of the accusation
had commenced. Although injunctive relief is
exceptional in defamation cases, it was provided there because the defendant did
not
attempt to substantiate the truth of its allegations. The judge
said:
the effect of such accusations on persons infected with the AIDS virus will undoubtedly place them under severe stress. This will not only make their lives miserable but it will also be likely to worsen their condition and possibly contribute to the collapse of their immune system.[33]
[22] In the first case, Hartigan Nominees Pty Ltd v Ridge,[34] a beneficiary had requested access to a memorandum of wishes provided by the instigator of a discretionary trust for the use of the trustees in exercising their powers in ways that directly affected the beneficiary. I concluded that such access should be provided and that no immovable principle of equity or of the common law stood in the way. I sought to derive analogies from public law and, specifically, from readier contemporary access to government information about an individual.[35] However, a majority decided otherwise.
[23] In Breen v Williams,[36] I decided that a medical practitioner was in a fiduciary position in relation to his patient and was therefore obliged, upon her request and subject to certain exceptions, to provide the patient with access to the medical records held by the medical practitioner concerning the patient. In this, I followed a decision of the Supreme Court of Canada.[37] However, a majority in the Court of Appeal decided otherwise, and the High Court dismissed the patient’s appeal.[38] It held that neither the relationship, nor the facts, called forth fiduciary obligations. The law would not impose a burdensome duty that was ‘prescriptive’ rather than ‘proscriptive’.
[24] These and other
cases[39] demonstrate the occasional
limits on the capacity of the courts to express common law or equitable
principles for Australia that
respond to contemporary perspectives of justice,
whether in relation to privacy or anything else. This is true even where the
aspect
of justice involved amounts to an important attribute of fundamental
human rights. Privacy is one such fundamental right. It is specifically
recognised in art 17.1 of the ICCPR, to which Australia is a party. Its
provisions will inevitably influence the development of the common law, as they
have already
done.[40] But the
provisions themselves are not part of the common law. Put simply, there are
occasions when the courts do not feel able to
deliver legal protection,
including in respect of privacy interests. That is why pressure must be
maintained on politicians to drag
themselves away from the enjoyable race of the
hustings and occasionally to attend to lawmaking in the field of privacy, as
lately
they sometimes
have.[41]
[26] One of the most important changes in the field of privacy, so far as I am concerned, has occurred in courts and other judicial bodies established to uphold fundamental human rights. I refer to the series of decisions giving meaning to the basic right to privacy to redress the injustice of legislation imposing unwarranted intrusions on the privacy of adult sexual conduct. A series of decisions of the European Court of Human Rights on this subject[43] stimulated a determination by the Human Rights Committee of the United Nations in respect of a complaint by an Australian citizen living in Tasmania concerning the criminal law of that State.[44] The Committee’s decision, adverse to Australia, led to the enactment of federal legislation,[45] and ultimately to repeal of the offensive Tasmanian laws. Let no one suggest that international human rights law is a toothless tiger.[46]
[27] Whilst the reforms achieved in that case may be viewed as important steps for privacy rights in Australia, there are still critical voices. For example, it is unfortunate that there was no domestic constitutional means to uphold privacy rights that would have saved the need for an appeal to Geneva. The decision of the Human Rights Committee was followed on this occasion, but it is not binding on Australia, as a local court order would be. There is no regional human rights court or commission for Asia and the Pacific to uphold fundamental human rights, including privacy. Furthermore, some homosexual writers have criticised Toonen v Australia[47] on the footing that full equality for homosexual Australians presents a challenge to fundamental human dignity, not simply to privacy.[48] Thus the Tasmanian case illustrates both the utility of the international human rights dialogue (including as it affects privacy) and its limitations for the Australian legal landscape.
[28] As the ALRC proposed fifteen years ago, most future laws on privacy in Australia will be made by legislatures. They will concern entirely new privacy questions, such as the privacy of genetic data.[49] Lawmaking by legislators in such novel fields is how it usually should be.[50] Privacy is commonly in competition with other values, and elected representatives are ordinarily (though not always) better placed to decide where the legal balances should be struck.
[29] Meantime, a myriad of cases, of relevance to privacy protection, come before Australian courts in other guises. Rarely indeed since Taylor’s Case will they be presented as ‘privacy’ cases.[51] Instead, they will ordinarily be catalogued and argued as cases about nuisance, trespass, battery, defamation, fiduciary duties, copyright, breach of confidence, secrecy or some other legal head. As Australian courts become more accustomed to drawing upon international statements of fundamental rights and the jurisprudence that expounds those rights, it is possible that the notion of privacy, as such, will be revived in our legal discourse. Courts will then be presented with choices. Those choices, even today, can sometimes strike down useful legal developments and withdraw the law’s aid to parties with an apparently legitimate grievance. But occasionally they can also afford relief.
[30] With so many
challenges to privacy being presented by contemporary technology, there will be
plenty of work for lawmakers of
every kind to perform in delivering justice. And
that includes, where it is appropriate, the judicial lawmakers in the
courts.
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