1 10 August 2021 the Hon Steven Marshall MP Premier of South
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10 August 2021 The Hon Steven Marshall MP Premier of South Australia GPO Box 2343 Adelaide SA 5001 By email: [email protected] Dear Premier Draft Civil Liability (Serious Invasions of Privacy) Bill 2021 I write to you on behalf of Free TV Australia, News Corp Australia, ABC, SBS and Commercial Radio Australia – representing all television, radio, print media and the vast majority of digital news and current affairs reporting in South Australia – regarding the draft Civil Liability (Serious Invasions of Privacy) Bill 2021 (‘draft Bill’). We are extremely concerned that the South Australian Government is proposing to introduce a statutory cause of action for invasions of privacy. We note that we and other media organisations have made submissions on the draft Bill, and have also met with the Attorney-General’s adviser. Australian media companies do not support such a cause of action in any form, for the following reasons: • The case for introducing a privacy cause of action has not been made. It is unjustified and, on this basis alone, it should not proceed. • It would apply to everyday news gathering activities and news and current affairs reporting. It is anathema to news gathering and would place undue weight – in fact, primacy – on privacy at the expense news and current affairs reporting of matters the South Australian public has a right to know about. • It is unnecessary as current privacy laws are extensive, including: o Various Commonwealth and state/territory privacy laws including laws regarding the use of surveillance devices, revenge porn and the misuse of carriage services; common law actions of 1 trespass, the tort of nuisance and the equitable action of breach of confidence; the recently passed Online Safety Act 2021 (Cth); and o Media industry codes and standards that set media specific privacy rules and restrictions. • It is a disproportionate response to claims of ‘gaps’ in existing laws. To the extent that there are gaps in the existing regime (we do not agree there are) they should be dealt with by road-testing those claims and if appropriate amending existing laws to deal with specific problems rather than by creating a separate overlapping cause of action which would only create a raft of new substantial issues. • It would introduce a substantial drain on judicial resources, for the benefit of those who have sufficiently deep pockets to engage in lengthy litigation. It would also be used in a speculative manner by people who want their misdemeanours expunged from the public record. Courts in other states, particularly NSW, have seen an increase in defamation actions between individuals – creating a drain on court resources and imposing costs on individuals for no public benefit. • A statutory cause of action in South Australia would interfere with the Federal Government’s review of the Privacy Act which is specifically looking at whether a statutory cause of action for serious invasions of privacy should be introduced nationally. A statutory cause of action is therefore unjustified. It would expose media companies to a significantly increased risk of costly litigation which would lead to self-censorship and materially affect reporting in the public interest. This will deprive the people of South Australia of their right to know what’s going on in their streets and communities. We therefore strongly oppose a statutory action in any form, including the draft Bill. We would like to request a meeting with you, attended by the senior leaders from our South Australian operations, to discuss these concerns. We will be in touch with your office to set up a convenient time. Yours sincerely Bridget Fair CEO, Free TV Australia, on behalf of Ish Davies Andy Kay Sean O’Brien Managing Director, SA Head of Olympics Managing Director – Adelaide News Corp Australia General Manager, 7 Adelaide Nine Entertainment Seven Network Frank Filosi Joan Warner Clare Mackay VP Operations & Facilities and CEO Editor, SA General Manager Adelaide Commercial Radio Australia ABC Network Ten ViaComCBS Cc: The Hon Vickie Chapman, Attorney-General By email: [email protected] 2 .