The limits of freedom

The greatest opposition to the commission's report has predictably come from the media. The most contentious recommendation is that people should be entitled to compensation for a serious invasion of their privacy. Countries such as the United States and Canada recognise this, as have court decisions in Queensland and Victoria. The idea of a new right of action in court has triggered strong concerns, including that it might lead to a ''wave of litigation''. The proposal has been portrayed as a severe limit on freedom of speech that would advantage only those with something underhand to hide.

The media companies are right to be uneasy but have overstated their case. It is time that Australian law caught up with other nations in allowing people to sue for serious invasions of their privacy. The law should, for example, provide a remedy and thus a disincentive where someone is filmed by using a hidden camera in a toilet or where someone posts a video on the internet of their ex-girlfriend engaged in sexual activity. The law should also provide stronger protection in areas like the public exposure of private medical records and other confidential information.

On the other hand, a breach of privacy such as interfering with personal correspondence should lie outside the law where it is in the public interest. This could be, for example, because it is an investigative report that has revealed corruption. The problem lies in where to draw the line. Even having a modest right of action may chill a wide variety of reporting due to fear of legal action.

Part of the media's concern is that its ability to report as news the lifestyles and misdeeds of celebrities will be curtailed. This is a real issue as the law might, for example, prevent reporting in a gossip magazine of a celebrity entering drug rehabilitation. Then again, you have to ask what the public interest is in such reporting and why a celebrity is not entitled to respect for their private medical life.

Where the media organisations have their best point is that the new right to privacy will go too far because it will not be balanced by equivalent rights to freedom of expression and freedom of the press. Because Australia does not have a national charter of rights that equally protects fundamental rights such as speech and privacy, a special law for privacy may tip the scales too far to one side. Privacy is not an absolute right. It has important limits, especially where journalism is involved.

Significantly, other countries that allow people to sue for serious breaches of their privacy also have express protection of free speech. Australia should also go down this path. Our privacy should be protected against unwarranted invasion, including by the media, but this should be tempered by a legal guarantee of freedom of expression.