Perspectives on Privacy

Increasing Regulation in the USA, Canada, Australia and European Countries

Dieter Dörr, Russell L. Weaver, Dieter Dörr, Russell L. Weaver

• Publisher: De Gruyter
• Year: 2014
• Print ISBN: 9783110338171
• eBook ISBN: 9783110370690
• Edition: 1
• Topic: Social Sciences
• Subtopic: Library & Information Science
• Index: Social Sciences

Infolge der rasanten Entwicklungen im Kommunikationsbereich, steht das Recht auf Privatsphäre vor immer neuen Herausforderungen. Die zunehmende Digitalisierung und Internationalisierung von Kommunikationsprozessen werfen zahlreiche Fragen auf und führen dort zu Konflikten, wo nationale Rechtsordnungen und Wertvorstellungen aufeinander prallen. Insbesondere im Bereich des Datenschutzes und der Frage nach der Haftung von Online-Dienstanbietern sind universelle Lösungsansätze gefragt. Im vorliegenden Werk stellen sich ExpertInnen aus Europa, Australien, USA und Kanada einem internationalen Dialog, der zumindest Impulse für einen nachhaltigen Schutz des Rechts auf Privatsphäre geben soll.

Miiko Kumar and David Rolph⁵³⁸

An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy

A. Introduction

The principle of open justice is a fundamental feature of the administration of justice in Australia.⁵³⁹ In principle, derogations from open justice are tightly controlled and usually only permitted on the grounds of necessity.⁵⁴⁰ Mere embarrassment or distress at the public revelation of personal or private material has not been recognised as a sufficient basis for departing from the principle of open justice.⁵⁴¹ Thus, by litigating, parties and their witnesses allow personal or private aspects of their lives to be publicly scrutinised.

Over the last decade, there has been a growing concern about the incidence of suppression orders being granted by Australian courts in particular jurisdictions. ⁵⁴² In response to the seeming disconformitiy of approach across Australian jurisdictions, the Standing Committee of Attorneys-General developed a proposal for the harmonisation of legislation governing the grant of suppression and non-publication orders.⁵⁴³ Thus far, the model laws that developed from this process, the Court Suppression and Non-Publication Orders Bill 2010, have only been adopted for New South Wales courts and the Federal Court of Australia and are proposed to be adopted in Victoria.⁵⁴⁴ The grant of suppression and non-publication orders has continued to increase in the two largest jurisdictions in Australia, New South Wales and Victoria. Indeed, the introduction of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“CSPO Act”) led to an exponential increase in applications and orders in that jurisdiction.⁵⁴⁵

Amongst the recent spate of applications in New South Wales and Victoria, there have been a number of applications by high-profile Australians seeking suppression or non-publication orders in order to limit media reporting of their disputes. The litigation involved variously disputes over family trusts, the breakdown of a de facto relationship and a claim on a deceased estate. The claims therefore clearly entailed the public ventilation of personal or private material. These applications were largely unsuccessful. However, they draw attention to the tension between open justice and privacy.

The issue of privacy is one that has been of sustained interest to law reform bodies and legislators in Australia. Over the last five years, three law reform commissions have recommended the introduction of a statutory cause of action for invasion of privacy and the Federal Government has conducted a consultation on the issue.⁵⁴⁶ Although there is still no general, direct right to privacy under Australian law,⁵⁴⁷ it has always been an important underlying value and one that now is pressing a claim for greater legal protection.⁵⁴⁸

This chapter examines a recent series of cases in which suppression or non-publication orders have been sought by high-profile litigants in disputes concerning their private, personal or family affairs. In doing so, it questions whether the principle of open justice is insufficiently respectful of claims to privacy. It also examines recent legislative and procedural developments in New South Wales, which demonstrate an increased concern for the privacy of parties and witnesses. These reforms suggest that the principle of open justice does not necessarily require the gratuitous inclusion of private personal information in publicly available judgments.

B. The principle of open justice

The principle of open justice means that court proceedings are presumptively conducted in public. Courtrooms are physically open to the public; the identity of litigants and witnesses are publicly known. In reality, few members of the public physically attend court proceedings,⁵⁴⁹ instead relying on media outlets to act as ‘the eyes and ears of the public.’ The ability of media outlets to provide fair and accurate reports of court proceedings conducted in public is therefore an important consequence of the principle of open justice.⁵⁵⁰

There are a number of reasons for the importance of open justice. It aims to ensure not only that justice is done but is seen to be done,⁵⁵¹ thereby enhancing public confidence in the administration of justice and promotes the values of the rule of law.⁵⁵² Open justice seeks to ensure that judges are accountable and act with integrity and propriety and that witnesses tell the truth. Publicity acts as a check on arbitrary power. Indeed, it is an essential attribute of judicial, as opposed to executive, power.⁵⁵³

In Australia, open justice is a fundamental principle of the common law.⁵⁵⁴ There is arguably a constitutional basis for open justice in relation to the exercise of judicial power under Ch III of the Australian Constitution.⁵⁵⁵ In those jurisdictions in which there is a comprehensive statutory protection of human rights, the right to a fair trial is protected and includes a presumption of a public hearing.⁵⁵⁶ Privacy is also protected under these statutes and is balanced with the right to a public hearing.⁵⁵⁷

At common law, the principle of open justice is not absolute. There are permissible departures from it, based on the strict test of necessity. These have developed into recognised categories in which a court is more disposed to exercise its power, as part of its inherent jurisdiction, to depart from the principle of open justice. The categories include proceedings involving wards of State and mentally ill people,⁵⁵⁸ blackmail and extortion cases,⁵⁵⁹ where the disclosure of information would affect its commercial value or confidential quality,⁵⁶⁰ informers,⁵⁶¹ and to protect matters of national security.⁵⁶² The categories for which it is established that there may be a departure from the principle of open justice are “few and strictly defined”⁵⁶³ but they are not absolute and may be extended to new circumstances by analogical reasoning.⁵⁶⁴ However, courts are loath to expand the field.⁵⁶⁵ Significantly, at common law, it has never been deemed necessary to derogate from the principle ...

Table of contents

• Media Convergence/ Medienkonvergenz
• Title Page
• Copyright Page
• Table of Contents
• About the Authors
• Privacy and the Fourth Amendment
• A Two-Dog Term
• Regulating Data Protection within the European Union
• The European Approach towards Data Protection in a Globalized World of Data Transfer
• The New General Data Protection Regulation of the European Union – Will it Widen the Gap between Europe and the U.S.?
• The Google Autocomplete Function and the German General Right of Personality
• Lawful Access and the Discretion to Disclose
• Cross-Border Transfer of Personal Information: Evolving Privacy Regulation in Europe and Australia
• Employee Monitoring and Surveillance under Australian Law: The Need for Workplace Privacy Legislation
• An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy