Meaning of public interest

Proposal 8–2 The new Act should include the following non-exhaustive list of public interest matters which a court may consider:

(a) freedom of expression, including political communication;

(b) freedom of the media to investigate, and inform and comment on matters of public concern and importance;

(c) the proper administration of government;

(d) open justice;

(e) public health and safety;

(f) national security;

(g) the prevention and detection of crime and fraud; and

(h) the economic wellbeing of the country.

Should public interest be defined?

8.35 ‘Public interest’ should not be defined, but a list of public interest matters could be set out in the new Act. The list would not be exhaustive, but may provide the parties and the court with useful guidance, making the cause of action more certain and predictable in scope. This may in turn reduce litigation.

8.36 In Hogan v Hinch, French CJ stated that when ‘used in a statute, the term [public interest] derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears’.[25]

8.37 In the UK, the Joint Committee on Privacy and Injunctions concluded that there should not be a statutory definition of the public interest, as ‘the decision of where the public interest lies in a particular case is a matter of judgment, and is best taken by the courts in privacy cases’.[26]

8.38 Including a non-exhaustive list of public interest matters seems more helpful than a definition of public interest, which might necessarily have to be overly general or overly confined and inflexible.[27]

8.39 Community expectations of privacy change over time. This is another reason to include a non-exhaustive list of public interest matters for a court to consider, rather than a definition of public interest. It will allow the meaning of public interest to develop in line with changing community attitudes and developments in technology.

8.40 There is precedent in Australian law and in regulation for providing guidance on the meaning of ‘public interest’, including the public interest exemptions in the Freedom of Information Act 1982 (Cth).[28]

8.41 A number of stakeholders expressed support for including a non-exhaustive list of factors in the Act.[29]

8.42 Other stakeholders said that the Act should not provide guidance on the meaning of public interest.[30] The Law Institute of Victoria submitted:

This is a phrase commonly used in legislation and one with which courts are familiar. ‘Public interest’ is a broad concept that is flexible enough to respond to the facts and circumstances of any particular case. Given that privacy is fact and context specific, it is appropriate to keep concepts such as ‘public interest’ broad and flexible.[31]

8.43 Alternatively, broad concepts which go to the meaning of public interest could go in the objects section or the preamble of the Act.

Which public interests should be listed?

8.44 Article 8 of the European Convention on Human Rights, which recognises the right to respect for private and family life, provides that there should no interference by a public authority with the exercise of this right:

except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[32]

8.45 The public interests that will perhaps most commonly conflict with a plaintiff’s interest in privacy are the public interest in freedom of speech and in a free media.[33]

8.46 Many who oppose a new cause of action for privacy fear that it will impede freedom of speech and the freedom of the media. In the absence of a human rights legal framework in Australia, it seems important for the statutory cause of action for serious invasion of privacy to give express recognition to the public interest in freedom of speech and freedom of the press.

8.47 When balancing an interest in privacy with a public interest in freedom of expression, the nature of the expression will be relevant. Not all speech is of equal value to the public. Political communication, for example, should be given considerable weight in the proposed balancing exercise, particularly considering that freedom of political communication is implied in the Australian Constitution.[34]

8.48 In Campbell, Baroness Hale LJ said that there are ‘undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others’:

Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals’ potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of speech and expression for which similar claims can be made.[35]

8.49 Other matters of public interest may also conflict with privacy interests. The ALRC has listed some of these in Proposal 8-2.

8.50 Finally, it should be noted that privacy is also a public interest, not merely a personal interest. Although it is not included in the list proposed above which deals with countervailing matters of public interest, the ALRC considers that the public interest in respecting privacy should be considered in the proposed balancing exercise.

[25] Hogan v Hinch (2011) 243 CLR 506, [31] (citation omitted).

[26] Joint Committee on Privacy and Injunctions, Privacy and Injunctions, House of Lords Paper No 273, House of Commons Paper No 1443, Session 2010–12 (2012) 19. See also B Arnold, Submission 28.

[27] The Australian Press Council defines public interest as ‘involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others’: Australian Press Council, General Statement of Principles.

[28] Freedom of Information Act 1982 (Cth) s 11B.

[29] Office of the Australian Information Commissioner, Submission 66; ABC, Submission 46; Telstra, Submission 45; Electronic Frontiers Australia, Submission 44; Arts Law Centre of Australia, Submission 43; Public Interest Advocacy Centre, Submission 30.

[30] Law Institute of Victoria, Submission 22.

[31] Ibid.

[32] European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 8(2).

[33] For many purposes, these may be the same: ‘the traditional view in English law has been that freedom of the press and the freedom of individual writers are substantially the same. … However, this perspective may fail to do justice to the complexity of media freedom…’ Eric Barendt et al, Media Law: Text, Cases and Materials (Pearson, 2013) 18–19.

[34] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

[35] Campbell v MGN Ltd [2004] 2 AC 457, [148]. Part of this passage was quoted by SBS, who stressed the importance of respecting the public interest in the ‘free exchange of information and ideas’: SBS, Submission 59.