Protecting privacy in the digital era

Tessa Meyrick

The arrival late last month of the new heir to the throne was unsurprisingly attended by a flurry of media interest in the UK and beyond, with reports of the royal birth apparently accounting for a staggering 5 per cent of online news content consumed globally on 22 July 2013. When the (yet-to-be-named) Prince George of Cambridge made his first media appearance the following day, every portal, page, RSS and Twitter feed continued to be jammed with details of the Prince's BMI, speculations as to his naming (commiserations to those who'd put their cash on 'James'), and even the Royal swaddle he left wrapped in. 

Somewhere among all this emerged concern (including from the media itself) over how the Royal parents are to construct some semblance of an ordinary life for the Little Prince once the natal storm has passed. In the UK Government's official response to the news of the birth, Lord Hill of Oareford, Leader of the House of Lords, shared with his peers a hope that the Prince (and his no doubt fatigued parents) be given some privacy. The media agreed, with one major UK newspaper at pains to stress that 'no one, and certainly not the media, would want to deny the Duke and Duchess some time alone with their baby son'.

With the UK Government's plan for a new press regulator (set in chain by the Leveson inquiry) put on the back-burner until the Australian spring, it's uncertain which body in the UK will be responsible for ensuring the media comes good on its commitment to honouring the Royals' privacy. In any case, it's also not entirely clear that it’s the conventional media that’s going to need to be held to account.

Prince George is the first future monarch to grow up in an era of social media and under the gaze of many-a-quick-fingered 'citizen journalist' in possession of a smart phone. Which is to say, Prince George's privacy (or lack of it) won't depend purely on the strength and structure of media regulation in the UK, but will also hang on the development of a freestanding right to privacy in that jurisdiction. For the record: there is no such right in the UK, and nor is there in Australia. But if 'the right to be let alone is indeed the beginning of all freedom', then the influence of Article 8 of the European Convention on Human Rights and the extension of the law in relation to breach of confidence to cover misuse of private information by the Court of Appeal actually puts the UK in comparatively good stead. 

In Australia, the idea that privacy is solely a media regulation issue continues to hold ground. This was helped along by the Federal Government's decision in March this year – expressly in the context of its ill-fated media reforms – to sideline the question of whether Australians should be able to sue for serious invasions of privacy. Concerned that earlier consultations on a privacy tort (the 28 month Australian Law Reform Commission inquiry finalised in 2008 and the Government's own consultations in 2011) showed little consensus on what such a right would look like, the Government has referred the issue to the ALRC for yet another inquiry. That inquiry, 'Protecting privacy in the digital era', kicked off in June. The final report, focusing specifically on the legal design of a statutory cause of action, is due to be delivered in June 2014. Whether that report stays with its earlier counterparts in the 'too hard' basket will remain to be seen.

This piece first appeared on the Allens intellectual property blog, Scintilla.