The current controversy over salacious leaked email correspondence between Northern Territory ALP Senator Nova Peris and international athlete Ato Bolden is undeniably fascinating, not only in a prurient sense but also because of the legal issues it raises especially relating to breach of confidence.
The Northern Territory News had initially published much of the leaked correspondence in all its salacious glory, claiming a “public interest” because, so it said, the correspondence raised real questions as to whether Peris had engaged in misuse of public funds through successfully soliciting Athletics Australia to fund Bolden’s trip to Australia ostensibly for sporting ambassadorial purposes but really, at least as far as Peris was concerned, to engage in extramarital horizontal folk-dancing.
Given that Peris was not a politician at the time and that her own duties as an athletics ambassador did not involve receiving, assessing or approving funding grant applications like that of Bolden, the NT News claim of public interest looks just a little flimsy. There is no legal prohibition on any person lobbying an organisation to provide financial support for a cause that they are advocating, even when they have an undisclosed personal interest in the outcome. In my view one can reasonably say that Peris’s conduct was ethically questionable to say the least, and that might be enough to make it in the public interest in a non-legal sense. However, and unfortunately for the NT News, the legal scope for a public interest defence to an action for breach of confidence by Peris would be much narrower. I will explore that a little later.
In the wake of the NT News’ initial publication, Senator Peris sought to defend herself by making a statement to Parliament, claiming among other things that the leaking of the emails was part of a campaign against her arising from family law parenting and “estate” proceedings in which she was being subjected to blackmail threats (although she did not actually use that word).
The next development was when crusading proprietor/editor Chris Graham from the online newspaper New Matilda weighed into the saga, publishing further excerpts from emails which (he claimed) not only failed to support Peris’s assertions of blackmail but if anything contradicted them. The New Matilda story was met with predictable howls of outrage from the publication’s predominantly left-leaning audience. Graham then sought to defend himself by publishing a justificatory article which asserted that there was a clear public interest in exposing a possible breach of Parliamentary privilege on Peris’s part, that he had been much more restrained than the NT News because he had refrained from publishing the juicy bits of the new emails, and that we should all watch this space because there were more explosive revelations to come. And possibly a Demtel steak knife as well.
Enter the lawyers
Then came the step that all we legal types have been awaiting. The Australian revealed that Nova has called in the lawyers:
The Australian can reveal that Senator Peris — who yesterday remained determined to ignore the crisis surrounding her and which threatens to explode anew with the potential publication of fresh, damaging private material — has retained Sydney lawyer George Newhouse, once an ALP political candidate.
Mr Newhouse’s office confirmed yesterday that his firm, Shine Lawyers, was representing Senator Peris together with Sydney silk Arthur Moses SC. The firm would not reveal what course of legal action Senator Peris planned to pursue, but a spokeswoman for Shine Lawyers said: “We do believe there’s a case, and it’s a strong case.”
The revelation comes as controversy continues to engulf both the Aboriginal senator and the independent media organisation that is now pursuing her following the original publication of salacious emails in the News Corp tabloid the NT News.
The left-wing website New Matilda has vowed to ignore an injunction threat by Senator Peris’s lawyers and to publish further allegations relating to the politician’s use of parliamentary privilege and her conduct prior to being sworn in as a senator last year.
So it seems that New Matilda is intent on pressing on with further publication despite the legal threats. Moreover, Chris Graham confirmed that to me this morning in a response on Twitter:
— newmatilda (@newmatilda) November 7, 2014
So what is the legal position?
First, there is no common law tort of breach of privacy in Australia, despite various Australian Law Reform Commission recommendations that such a tort should be legislated at least in cases of very serious invasions of privacy (which this one arguably is).
Secondly, Nova could make a complaint to the Commonwealth Privacy Commissioner. However, the Commissioner has no power to award either damages or an injunction, so she is unlikely to choose that option.
Thirdly, an action for breach of copyright is at least a theoretical possibility because presumably Peris has copyright in her own emails and did not authorise their publication. This might well be pleaded as a backup cause of action but I suspect it won’t be the main weapon employed by Newhouse and Moses SC.
Fourthly, an action for defamation is also a theoretical possibility. However, New Matilda would probably be able to rely on a defence of qualified privilege based on the so-called Lange doctrine arising from the implied constitutional freedom of political communication. This defence would protect New Matilda from being sued successfully in defamation even if its allegations turn out to be wrong, as long as it acted in good faith, without recklessness and “reasonably”. I don’t think New Matilda would have any problems with the first two requirements, and it would satisfy the reasonableness requirement as long as it had put its allegations to Peris before publication and given her an opportunity to respond. We can be confident that it did so, given that Chris Graham is a very experienced journalist.
Breach of confidence
Almost certainly the main cause of action that Newhouse and Moses will be relying on is an action in equity for breach of confidence. It may well have a good chance of success, although that is by no means a certainty for reasons I will explore. There is almost no doubt that Peris’s emails were confidential communications, and equally no doubt that the confidence must have been breached by someone at some point. There is also almost no doubt that Chris Graham would be well aware of who it was who breached confidence. As a good journalist he would certainly have checked his sources rigorously before publication.
Breach of confidence is defined as follows in a fairly recent Australian Law Reform Commission report:
Legally enforceable obligations to maintain confidence may arise in contract and equity. These obligations are capable of applying to individuals, organisations, agencies and officers of agencies. Relief is available against third party recipients of confidential information, and those who knowingly assist a confidant to breach his or her obligations of confidentiality.
- Public interest defence
There is a public interest defence to an action for breach of confidence but it is fairly narrowly defined, as this extract from another recent ALRC report explains:
In direct contrast to defamation cases, courts considering injunctions to restrain a breach of confidence do not exercise any special caution in the interests of free speech or other broadly defined public interests. Both in claims for breach of an equitable obligation of confidence, which lie in equity’s exclusive jurisdiction, and perhaps even more so in claims to restrain the breach of a contractual obligation of confidence, which lie in the auxiliary jurisdiction, authority in Australia takes a narrow approach to public interest considerations that would justify a breach.
The principle of general application, where the court is considering an injunction to restrain the breach of an equitable obligation of confidence, was stated by Gummow J in Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd:
That principle, in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.
However, although that may well make it tough for New Matilda to defend any injunction application that Peris may bring, it isn’t necessarily impossible. If New Matilda has strong evidence that Peris misled Parliament when she made claims of blackmail or conduct akin to it, then that might well amount to a “serious misdeed of public importance”.
The problem for New Matilda is that even if the email correspondence they have tends to indicate that Peris was telling porkies to Parliament, they cannot know how that correspondence would read in the broader context of any phone calls, text messages or face-to-face conversations between the relevant parties. They might conceivably give the email correspondence a quite different complexion. As someone suggested on Twitter the other day, blackmailers usually don’t put their demands in writing (unless they can find a way to keep themselves anonymous, which is clearly not the case here).
On the other hand, Peris will also face a dilemma in any injunction proceedings. If New Matilda puts its additional allegations to her before publication (which it will need to do to satisfy the reasonableness requirements of the defamation defence of qualified privilege), and she rushes off to court to seek an injunction instead of putting her side of the story, New Matilda might then be able to rely upon that conduct to argue that the court should not grant an injunction in the exercise of its discretion. One of the principal doctrines of equity, known to all law students, is the so-called “clean hands” doctrine: she who comes to equity must do equity. If, faced with a plausible allegation of breach of parliamentary privilege, Peris attempts to suppress it rather than meeting it head on and explaining herself, that might well be argued to amount to “unclean hands”. Moses will need to part the legal waters (I wonder how many times someone has inflicted that joke on him?).
It will be a tricky case for both parties to run. For the general public, learning about Nova’s nocturnal naughties may be the fascinating bit, but for us boring old lawyers the legal complexities are just as thrilling. Sad but true.