Recommendation 12–10 The Act should provide that courts may, where false private information has been published, order the publication of a correction.
12.154 The ALRC recommends that courts be given the power to order defendants to publish, in appropriate terms, a correction where false private information is published or otherwise disclosed. Such an order can set the record straight, and may be necessary where, for example, the defendant disclosed untrue private information about the plaintiff. This acknowledges the harm and distress which may be occasioned where false information on a personal or private nature is published.
12.155 As discussed in Chapter 5, the disclosure of private information may amount to a serious invasion of privacy despite the information being untrue. Private information can include information which is true or false so long as it has a quality of privacy, that is, the subject matter of the information is sufficiently private or personal in nature so that its disclosure would cause emotional distress to a relevant individual. In the Canadian case of Ash v McKennit, Longmore J noted:
The question in a case of misuse of private information is whether the information is private, not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be wary of becoming side-tracked into that irrelevant inquiry.
12.156 Correction orders may reduce the need for a plaintiff’s interests to be vindicated through an award of damages. Some plaintiffs may be primarily concerned with correcting the public record, in which case correction orders should target the same audience. Carroll and Witzleb have made the point that in actions to restore personality interests, monetary remedies may be ill-suited. Instead, coercive methods such as public corrections may be more appropriate to reverse or reduce the effect of an invasion of privacy which has demeaned and distressed the plaintiff in a public forum.
12.157 ASTRA opposed any remedies which would compel corrections, arguing that media organisations are already subject to similar provisions in ASTRA Codes, which are registered with the ACMA. However, there may be instances where a plaintiff is awarded a range of remedies as part of the cause of action including damages and an order for apology. In such cases, the availability of those remedies in a single cause of action will provide simplicity for all parties to a proceeding. A plaintiff would not need to pursue a defendant through both a regulatory scheme and through the courts in relation to the same serious invasion of privacy. Furthermore, if a defendant has already made a statement involving a correction, this will mitigate an award of damages.
12.158 Guardian News raised the concern that correction orders will ‘constitute a further and unnecessary restriction on free speech’. Similarly, the ABC was concerned that court-ordered apologies and correction orders could inhibit the editorial independence of journalists. These news organisations were concerned that the availability of these remedies will chill media activities, causing journalists to become reluctant to publish news items which may contain private information. However, the availability of a correction order will only arise in instances where the defendant published private information which was false and which was a serious invasion of privacy. This is consistent with anti-discrimination law. For instance, in Eatock v Bolt Bromberg J noted that the purposes a corrective notice can serve to facilitate are:
redressing the hurt felt by those injured; restoring the esteem and social standing which has been lost as a consequence of the contravention; informing those influenced by the contravening conduct of the wrongdoing involved.
12.159 There may be instances where a plaintiff would not wish a public correction of false private information to be made—in circumstances where that plaintiff feels the order would compound the hurt, distress or embarrassment occasioned by the original publication. This will be a matter for the plaintiff in a given case.
Australian law provides discretion to a court to issue coercive correction orders, for example, Australian Consumer Law (Cth) 246(2)(d). In defamation law, a court does not have the discretion to issue a correction order, however whether a defendant has made an apology or a correction order can be taken into account when assessing the ‘reasonableness’ of any offer of amends, for example in Defamation Act 2005 (NSW) 2005 s 14.
See Ch 5.
McKennitt v Ash  QB 73, 86.
Carroll and Witzleb, above n 17, 236.
ASTRA, Submission 47.
See Rec 12–2.
Guardian News and Media Limited and Guardian Australia, Submission 80.
ABC, Submission 93.
Eatock v Bolt (No 2) (2011) 284 ALR 114, .