10.12.2014
The Australian article by Chris Merrit states that in 2008 the ALRC “called for a new way of suing the media for invasions of privacy … [that] had no public interest defence nor a defence of truth”.
While, the ALRC’s 2008 privacy report, For Your Information: Australian Privacy Law and Practice (ALRC Report 108), did not recommend a public interest defence, it did recommend something that would arguably provide better protection for the media: an upfront or threshold public interest balancing test. The ALRC recommended:
“In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).”
A threshold public interest balancing test is also recommended in the ALRC’s more recent report, Serious Invasions of Privacy in the Digital Era (ALRC Report 123, 2014). Again, this was recommended as a better protection for the media than a defence. The claimant would not have an action unless the threshold test was satisfied.
The idea of a defence of truth is misconceived. It is usually the revelation of true, private, information which is an invasion of privacy. (The defence of truth is only relevant to defamation claims which are based on the assumption that the slur is false.)