Admittedly,
this is not a likely scenario, but there is a serious side to my jocular
narrative: I am indeed going to be more careful about what I put in my private emails.
I have been known to make some scathing comments about various groups and
individuals (which of us hasn’t?) which in retrospect I would prefer to remain cosily
entre nous between me and the
intended recipient. Maybe I should have a jolly good look at the people I send
emails to – is there a potential back-stabber among them, someone who maybe has
the huff with me and would just love to drop me in it?
But you
said ‘private emails’, I hear someone say, so surely that’s............. well,
private, not intended for the public domain, and whomever spilled the beans is
breaching your right to privacy and indeed breaching a confidence as you sent
it to the recipient(s) as a personal message, so you could get an injunction
against the rotter and sue.
No, it’s
not as simple as that. There is no tort of invasion of privacy as such in
Common Law. There has effectively been one created in English law – the Naomi
Campbell case of 10 years back was a milestone in that regard – but this has
been brought about by the incorporation of the European Convention on Human
Rights (ECHR) through the Human Rights Act 1998 and English courts have had to
adopt a whole new ‘rights’ mindset. The decisions of senior English courts can
have persuasive authority in other Common Law jurisdictions, but that’s not
really relevant in the context of jurisdictions that did not sign up to the
ECHR.
The ‘breach
of confidence’ angle is a rather weak one where no reasonable person would
regard the information imparted as ‘confidential’. My telling a handful of
mates an Irish joke can hardly be seen as taking them into my confidence, so
they are not bound by any duty of confidentiality – unless I impress it upon
them that the joke is confidential,
which would rightfully make them suspect that I had been out in the sun a bit
much of late!
The real
problem doesn’t lie with my Irish jokes or even with some prat (Irish or
otherwise) who makes them public with malicious intent. It lies with certain
media outfits which pounce on them with a view to whipping up a scandal, with some
rent-a-crowd baying for my blood, and with an employer who over-reacts to the
situation by slapping an embargo on me.
I am, of
course, alluding to the Barry Spurr case across the Tasman. Somebody ratted on
him by passing some personal emails containing pointed comments about certain
individuals and groups to an on-line self-styled news agency called New
Matilda, and the proverbial hit the fan.
Spurr
initially tried to argue that he was merely playing a “whimsical word game”.
The guy is a Professor of Poetry, after all, and fellows of the literary bent
often make use of hyperbole. But Professor Spurr teaches (or rather, taught) lots
of university students who, we are told, must be protected from the pernicious
influence of a man with such nefarious views as are reflected by those comments.
He was also a member of a 3-man panel looking at the school English curriculum
and made himself thoroughly unpopular with certain people when he suggested
infusing more classical English literature into the curriculum at the expense
of indigenous (Aboriginal and Torres Strait Islander) literature. A man with
such politically incorrect opinions should not have any say in what is taught
in schools, we are told, and those terrible things he said in his emails prove
it, so there.
The
connection with the school curriculum review was largely what made Spurr’s private
outpourings “a matter of public interest” – an important line of argument for a
journalist facing a claim for invasion of privacy or breach of confidence. New
Matilda is hardly Reuters, but they made apparently successful use of this
argument when Spurr (through his lawyers)
demanded that they disclose their source (i.e. the name of the character who landed him in it); the demand
has now been dropped or at least shelved for the time being.
The case,
set for December, is being seen as a legally momentous one in the development
of Australian privacy law. It has polarised opinion, the lefties pumping out
headlines like “The smoking gun of institutional racism” and right-wingers
coming out with rejoinders such as “The new puritanism” (thank you Barry Humphries).
The
University of Sydney says that it does not tolerate “sexist, racist or
offensive” remarks being made on its email facility. Excuse me, ‘sexist’ or
‘racist’ by what – or rather, whose – standards? The same goes for ‘offensive’
– offensive to whom? If the answer to these questions points in the direction
of some authoritarian PC clique, a great many of us are in dire trouble for
being ‘sexist’ or ‘racist’ without knowing it, or for ostensibly causing
offence through some statement we thought was innocuous.
The status
of emails as private correspondence is not entirely settled in law. While the
Law Reform Commission was inclined to treat them as being akin to conventional
pen-and-paper letters, the fact remains
that an email is not a letter – it is not in an envelope that has to be
surreptitiously (and illegally) opened, and it can be forwarded to any number
of recipients (or even the whole world, through the internet) at the touch of a
button.
One bright
spark I came across in the news media suggested that people send any possibly
touchy personal messages through an internet email provider like Hotmail.
Perhaps there is some merit in that advice. although one could conceivably
still get nailed by the employer if one had sent the message from a workplace
machine. We can only wonder how much difference it would have made had Barry
Spurr’s leaked emails been from a Hotmail or gmail account and sent from his
home computer, although the University may well have had less reason to suspend
him and bar him from all its campuses.
The Barry
Spurr case is about a lot more than any ‘tort of privacy’ or breach of
confidence, or technicalities about the legal status of email messages. It is
about the targeted persecution of a man for informally sharing his opinions
with a handful of private recipients – people who, I should add, are shaking in
their boots for fear of being revealed because of the possible repercussions
for them. Hey, is this North Korea or
Australia we are on about?
Whatever
the outcome of the case, Barry Spurr’s name is now mud, and his career probably
in tatters. Maybe I should try to cheer him up by sending him a few Irish
jokes. Then again, maybe I’d better not.
Barend
Vlaardingerbroek BSc (Auckland), BA, BEdSt (Queensland), MAppSc (Curtin), PhD
(Otago), DipCommonLaw, PGDipLaws (London) is associate professor of education
at the American University of Beirut. Feedback welcome at bv00@aub.edu.lb.
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