The balancing exercise

Recommendation 9–1               The Act should provide that, for the plaintiff to have a cause of action, the court must be satisfied that the public interest in privacy outweighs any countervailing public interest. A separate public interest defence would therefore be unnecessary.

9.7          Privacy is an important public interest, but of course there are other important public interests.[1] Sometimes, these other interests should prevail over a person’s interest in privacy. There should be a clear process for balancing competing interests, to ensure the new action does not privilege privacy over other important public interests.

9.8          Although there was some disagreement about how and when the balancing exercise should be carried out, stakeholders agreed that a broader public interest may sometimes justify an invasion of privacy, and that this should be recognised in any tort for serious invasion of privacy.[2]

9.9          In Hosking v Runting, Gault P and Blanchard J of the New Zealand Court of Appeal discussed how the law should reconcile competing values:

Few would seriously question the desirability of protecting from publication some information on aspects of private lives, and particularly those of children. Few would question the necessity for dissemination of information albeit involving information about private lives where matters of high public (especially political) importance are involved. Just as a balance appropriate to contemporary values has been struck in the law as it relates to defamation, trade secrets, censorship and suppression powers in the criminal and family fields, so the competing interests must be accommodated in respect of personal and private information.[3]

9.10       The ALRC in 2008 recommended including a balancing exercise as an element of the tort. This was similar to the approach recommended by the New South Wales Law Reform Commission (NSWLRC) in 2009.[4]

9.11       In Hogan v Hinch, French CJ said that the ‘term “public interest” and its analogues have long informed judicial discretions and evaluative judgments at common law’:

Examples include the enforceability of covenants in restraint of trade, claims for the exclusion of evidence on grounds of public interest immunity, governmental claims for confidentiality at equity, the release from the implied obligation relating to the use of documents obtained in the course of proceedings, and in the application of the law of contempt.[5]

9.12       What is the public interest? In Reynolds v Times Newspaper, Bingham CJ said that by ‘matters of public interest to the community’, he meant:

matters relating to the public life of the community and those who take part in it, including within the expression ‘public life’ activities such as the conduct of government and political life, elections … and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure.[6]

9.13       Some of the more notable public interest matters that a court might consider when applying the balancing test recommended by the ALRC are discussed further below. But it may be useful first to consider how this balancing exercise should be carried out.

9.14       The ALRC recommends that Australian courts use a balancing approach similar to that identified by the House of Lords in Campbell.[7] In the United Kingdom (UK), rights to privacy and to freedom of expression, in arts 8 and 10 of the European Convention on Human Rights, have been incorporated into domestic law by the Human Rights Act 1998 (UK). Both must be considered when determining whether a cause of action for misuse of private information has been established. In making this determination, two questions are asked:

First, is the information private in the sense that it is in principle protected by article 8? If ‘no’, that is the end of the case. If ‘yes’, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10?[8]

9.15       It is in answering this second question that the balancing exercise is carried out. The correct approach to this balancing exercise, Baroness Hale said in Campbell,

involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.[9]

9.16       In Re S, Lord Steyn said that four propositions emerge clearly from the opinions in the House of Lords in Campbell:

First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.[10]

9.17       The balancing exercise recommended by the ALRC above is similar to this UK approach. However, although freedom of expression may be the most common interest at stake in actions for serious invasion of privacy, a range of public interests may need to be considered when carrying out this balancing exercise. As recommended below, examples of these many public interests should be set out in the Act.

9.18       Courts also ‘balance’ public interests for other purposes.[11] The following section briefly outlines three other situations in which courts balance competing public interests.

Other balancing tests

Right to a fair trial

9.19       A person’s right to a fair trial is another important public interest that must be balanced against freedom of expression. The classic statement of the relevant principles was made by Jordan CJ in the Bread Manufacturers case:

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.[12]

9.20       Australian civil and criminal courts balance competing public interests in proceedings for contempt of court. The public interest in fair trials is usually weighed against the public interest in freedom of speech. This was made clear by the High Court of Australia in Hinch v Attorney General (Vic), which concerned radio broadcasts about a man charged with various sexual offences, and whether the broadcasts were in contempt of court. There may have been an important public interest in the public being informed about the man’s prior conviction and imprisonment, but Toohey J said that these and other considerations ‘must in the end be placed in the balance against a precept quite fundamental to our society, that a person charged with an offence is entitled to receive a fair trial’:

The Court is not the arbiter of good taste or literary merit but it must consider the entire content of the broadcasts and ask itself whether their prejudicial effect outweighs the public interest they seek to serve.[13]

9.21       Wilson J said that this balancing exercise ‘does not leave editors and publishers at the mercy of discretionary decisions of individual judges’:

[A] decision which is the outcome of the balancing process is not a discretionary judgment. It is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact.[14]

9.22       Discussing Hinch, Spigelman CJ in the NSW Court of Appeal has said that the ‘task of balancing conflicting public interests involves the making of a judgment by a process of evaluation’:

It is distinguishable from the making of a finding of fact. It is also distinguishable from the exercise of a discretion, in the sense of a choice between alternative courses of action. Although distinguishable, a process of evaluation will be found, for many jurisprudential purposes, to have a close analogy with fact finding and the exercise of a discretion.[15]


9.23       Tort actions in private nuisance frequently require the courts to balance the interests of the plaintiff with those of the defendant in their respective uses of their land.[16] Nuisance law famously rests on ‘a rule of give and take, live and let live’, according to the well-known aphorism of Baron Bramwell in Bamford v Turner in 1860.[17]

9.24       In Sedleigh Denfield v O’Callaghan, Lord Wright made a point that would be apt in many cases involving alleged invasions of privacy and the balancing of individuals’ rights:

A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society.[18]

Breach of confidence in the UK

9.25       In the UK, even before the enactment of the Human Rights Act 1998 (UK), the public interest in preserving confidences would be balanced with freedom of expression. In the Spycatcher case, Lord Goff said that,

although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply… to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.[19]

9.26       Lord Griffiths referred to cases in which it was found to be in the public interest that confidential information be disclosed:

This involves the judge in balancing the public interest in upholding the right to confidence, which is based on the moral principles of loyalty and fair dealing, against some other public interest that will be served by the publication of the confidential material.[20]

No trump card

9.27       It is important to recognise that no one interest should have automatic priority over the privacy interest of the plaintiff. That there may be some important public interest in allowing a serious invasion of privacy should not mean that the plaintiff’s interest in privacy may then automatically be ignored. For example, there is an important public interest in a free media, particularly a free media that reports on matters of public concern. However, even when reporting on matters of public concern, the media must show some respect for privacy.

9.28       For example, information about a government minister’s health will be private, but the minister’s interest in privacy may in some cases be outweighed by the public interest in being informed about the health of a person responsible for important public functions. However, even if there is a greater public interest in knowing about the minister’s health, this would not mean that a person should be free to use a surveillance device to follow the minister into their doctor’s room, or eavesdrop on conversations between the minister and her spouse about the minister’s health. There will be limits to how far a person may justifiably invade another person’s privacy, even for a genuine public purpose.

9.29       In other words, even important public interests will not always outweigh a plaintiff’s privacy interest, because privacy itself is a public interest.

No thumb on the scales

9.30       Is the balance tilted, before the exercise starts? It was submitted by one stakeholder that, considering Australia does not have a right to free speech, then enacting a privacy tort, even with a balancing exercise, will favour privacy interests over freedom of expression. News Corp submitted that the statutory cause of action

does in fact give ‘precedence’ to the right to privacy—as it is privacy that has the ‘protected’ status—by virtue of the statute and the structure of such. Fundamental freedoms and matters of public interest—including freedom of speech and freedom of the press, will therefore be secondary considerations, regardless of the ‘balancing’ exercise that has been incorporated into the statute. It is therefore difficult to see how elements of a cause of action—for example privacy and freedom of speech—which don’t have the same legal status can be truly ‘balanced’.[21]

9.31       The tort designed in this Report does not privilege privacy over other public interests. If anything, by requiring the plaintiff to satisfy the court that the public interest in privacy outweighs any countervailing public interest, the scales may be tilted slightly in favour of free expression and other public interests. In the presumably rare cases in which a court considers the competing interests are perfectly balanced, this element of the tort will not be satisfied.

Criticisms of balancing

9.32       There are some critics of the process of ‘balancing’ rights or interests, in the context of privacy claims and in other contexts. Some argued that certain rights and interests should not be qualified. In a paper on the principles of open justice, Spigelman CJ wrote:

For persons who are advocates of particular interests, or hold a particular intellectual perspective, the terminology of balancing is not always acceptable. The reason is obvious. Balancing necessarily results in occasions when the particular interest or perspective takes second place to some other right or principle.[22]

9.33       Calling something a right is of little value if the right is too readily ‘balanced away’. But it is inevitable that rights and values will sometimes clash, so there would seem to be no alternative to qualifying the rights in some respects. Once it is accepted that privacy and freedom of speech are both important rights and will sometimes clash, then it seems inevitable that each right must sometimes be qualified.

9.34       Some also argue that the right balance between competing interests should be found by Parliament, not the courts. However, it is impossible for Parliament to legislate for every situation that may arise. Inevitably, courts will have to make value judgments when adjudicating disputes. In balancing privacy with other public interests, often much will depend on the particular circumstances of the case, so this must be considered by the courts.

9.35       Finally, it should be noted that the balancing test is not an exercise in logic. Rather, it involves evaluating and weighing competing and often incommensurable rights, interests and values.