Spurr vs New Matilda: landmark case considers interplay between right to privacy, confidentiality and the public interest

Alex Hutchens, Alexia Marinos

A landmark privacy case is currently being heard in the Federal Court involving a university professor, an online news site and the publication of controversial leaked emails.  The outcome of this case is likely to have significant implications for the media and public generally.

Background

Sydney University Professor, Barry Spurr, who once assisted in a government review on the national English curriculum, has commenced an action against online news site New Matilda in the Federal Court for publishing emails sent to his friends from his university email account.  The emails, which Mr Spurr argues were not intended to be read literally, contained controversial comments about ethnic communities, women, university students and high profile individuals.  He argues that he has a right to keep them private. 

As a result of the publication of the emails by New Matilda, Mr Spurr has been suspended from his work and his reputation has been tarnished.  New Matilda will not reveal how it obtained copies of the emails.

Public interest vs individual privacy

The key issue in the case is whether there is any basis for establishing that the emails are private or confidential, and even if there is, whether an overarching public ‘right to know’ applies.

New Matilda argues that:

• because Mr Spurr’s emails were circulated via the university network that his correspondence is public and not legally protected, and
• publication of the emails is justified on the basis of public interest.

Mr Spurr argues that:

• staff email is a university rather than public resource
• his privacy should be respected and be free from inappropriate and unauthorised interference, and
• the information contained in the emails was his personal opinion and was confidential information.

It is an oft-cited principle of Australian law that there is no ‘right to privacy’, and while there are legislative proposals in the wings to establish a statutory action for breach of privacy, certainly under the Privacy Act in its current form, Mr Spurr has little if any redress.

However, the equitable principle of breach of confidence may also apply.  To be successful in a breach of confidence claim, Mr Spurr will need to establish that his emails had the necessary character of confidence, were imparted in circumstances of confidence (that is, that New Matilda knew, or ought to have known, that there were confidential) and that the publication of the information has or will cause him loss. 

To be successful in the public interest defence, New Matilda will need to establish the extent to which it is the public’s right to know about views held by a person who previously assisted government and whether this public interest overrides the individual’s right to keep personal information private and confidential.

It will be interesting to see how the Federal Court decides between the two important competing interests.  In the online environment where personal information is published widely and in large volumes, and where informal communications can be preserved indefinitely, we should all be interested, both personally and professionally, in how the Courts balance the competing interests.

An interim injunction has been granted against New Matilda and the hearing will continue in December.


 

Alex Hutchens

 

Alexia Marinos