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Source: The Sidney Morning Herald

Posted on April 23, 2011

What does the Skyping to an audience of sniggering cadets of a consensual sex act at the military college in Canberra and the hacking by the Murdoch press of the phone messages of celebrities, politicians and royals in London have in common?

The unifying thread must be the quite shocking invasion of the victims' privacy. The breathtaking audacity of the perpetrators has led to claims that these cases will inevitably cement the arrival, either by parliament or the courts, of an Australian law of privacy.

It is a far from settled landscape but maybe, at this juncture, it should be declared that we already have a fast-developing law of privacy in the form of actions for breach of confidence. The question is, do we really need any more law, particularly in the form urged by the Australian and NSW Law Reform Commissions?

Advertisement: Story continues belowIn England, phone hacking by investigators and journalists for Rupert Murdoch's News of the World has already led to criminal charges and imprisonment.

In England, phone hacking by investigators and journalists for Rupert Murdoch's News of the World has already led to criminal charges and imprisonment.

That is unlikely to be the end of the matter. Two other NoW journalists have been arrested and others will inevitably be dragged in.

Potentially thousands of people have had their phones hacked, including Gordon Brown, as chancellor of the exchequer, and John Prescott, as former deputy prime minister. The scale of the criminality is awesome.

There is now a slate of civil privacy actions against News Corporation's subsidiary, News International. The courts have ordered NoW to produce millions of emails and other documents. Those orders hastened the offer to settle with half-a-dozen or so victims.

James Murdoch, the third most senior person at News Corp, this month made the priceless observation: ''What we were able to do is really put this problem into a box.''

Noticeably absent from the settlement offers was the Australian woman who did product branding and intellectual property work for the model and lingerie impresario Elle Macpherson.

Mary-Ellen Field told the ABC's Mark Colvin how her career and livelihood were ruined by NoW phone hackers because unusual information about Macpherson, which would have been confined to only a few people, ended up in the tabloid. Ms Field was wrongly blamed for this breach of privacy and was fired.

One of the gruesomely fascinating things to emerge has been the connection between the newspaper and a former corrupt policeman by the name of Jonathan Rees.

Rees was the suspect in the murder of Daniel Morgan, his partner in a private investigation business. The inquiry into this murder was derailed early on by police corruption. Nonetheless, there were at least five separate investigations over 24 years, and an aborted trial. The whole disaster cost 50 million and was the most expensive and longest running failed prosecution in Britain.

Rees went to jail on an unrelated matter, but the point is that for many years he did snout work for NoW, even while awaiting trial in the Morgan case, and was paid up to 120,000 Pounds ($186,000) a year for information.

These are the depths to which ''journalism'' has sunk, leading to cries for sterner legislation and the blocking of Murdoch's takeover of the balance of the shares in the dominant British pay TV company, BSkyB.

A year ago Britain's leading defamation judge, Justice David Eady, made a speech at the Centre for Law, Justice and Journalism in London, saying the uncertainty of the law surrounding privacy had damaged freedom of expression. Too much of the Strasbourg-based European Court of Human Rights' way of doing things seemed to be the problem, resulting in celebrities being able to protect their privacy when ''popping out for a pint of milk'', he said.

Sections of the British media blame Eady for liberalising the law of privacy - particularly for his ruling in the privacy case taken by former formula one president Max Mosley - and conducted a campaign against him.

Last September he was replaced as the High Court's defamation list judge. Mosley has sought a ruling in Strasbourg that would require journalists to notify victims of potential breaches of privacy in advance.

In Australia uncertainties also abound, although most people aren't concerned about legal abstractions as to whether equitable actions for breach of confidence are developing too many tort-like features.

Thinking of that unfortunate military cadet in Canberra, and the abuse she suffered, brings to mind one of our landmark, but little heralded, Australian cases.

In December 2008 the Victorian Court of Appeal said in a case called Giller v Procopets that the plaintiff was entitled to compensation for breach of confidence as a result of her former partner showing a video of their sexual liaisons to her friends, family and employer.

Among other things, the court granted damages for mental distress, which was a big legal leap.

A leading researcher and thinkers in this area, Professor Barbara McDonald, of the University of Sydney, says the appeal courts are just waiting for a suitable case to sharpen up privacy protections.

So far privacy law, as a separate animal, has been slow to develop. Breach of confidence has stepped into the field and is developing rapidly. A legislated remedy of the variety being pushed by the law reform commissions is simply unnecessary.

As for James Murdoch's box, in which all the hacking troubles are supposed to be contained: just wait for it to burst apart.

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