Page 87 - Courting the Media Contemporary Perspectives on Media and Law

78 David Rolph

value, assumed by non-lawyers to be protected by law, but it was not in fact a
3
legal principle. A significant obstacle confronting attempts to identify a
common law right to privacy has been the asserted difficulty of defining what
4
privacy means. Although respect for privacy might be a shared community
value, each individual within that community might have a different subjective
expectation or experience of what privacy means to him or her. More broadly,
the content of privacy can vary historically across time, culturally across racial
or ethnic groups, nationally across borders, socially across classes or
generations [Australian Law Reform Commission, 2008].
In addition, although privacy has not been considered an enforceable legal
right, privacy as a concept is well-known and freighted with meaning. There
are multiple senses in which the terms, ‗private‘ and ‗public‘, can be deployed,
frequently in dichotomy to each other. One can talk about private or public
property; the private or public sphere; private or public places; private or
public law; the private or public sector; or private or public facts. One can talk
about the ‗public interest‘, which presupposes the existence of private
interests. One can talk about ‗public figures‘, which equally presuppose the
existence of private persons. These multiple discourses of privacy and
publicity frequently overlap or conflict. That the concept of privacy has
developed so many distinct meanings attached to it, without the common law
developing a direct form of legal liability, presents a real difficulty to any
attempt now to create and impose such liability.
Notwithstanding the multiple senses in which privacy may be understood,
the concept of privacy in the Anglo-Australian legal imagination is
inextricably connected with private property. It is frequently the well-
established torts protecting possessory interests in land – trespass to land and
private nuisance – which are cited as providing adequate, indirect protection of
privacy (in the case of trespass to land), thereby rendering a separate,
enforceable right to privacy otiose, or denying the possibility of further legal
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protection of privacy (in the case of private nuisance). The common law‘s

Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125 at 125 per Gray J; Australian
Consolidated Press Ltd v Ettingshausen (unreported, CA(NSW), Gleeson CJ, Kirby P and
Clarke JA, 13 October 1993) at 15 per Kirby P; GS v News Ltd (1998) Aust Torts Reports
¶81-466 at 64,913-64,915 per Levine J.
3
Wainwright v Home Office [2004] 2 AC 406 at 423 per Lord Hoffmann.
4
See, for example, Kaye v Robertson [1991] FSR 62 at 70 per Bingham LJ; Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 225-26 per
Gleeson CJ; Australian Law Reform Commission, For Your Information: Australian
Privacy Law and Practice, 2008, [1.41].
5
See, for example, Wainwright v Home Office [2004] 2 AC 406 at 418 per Lord Hoffmann.