There is no real pent-up demand for such a cause of action, despite some isolated grotesqueries on the part of the media - the David Campbell outrage by Channel Seven, the planting of bugs outside Nicole Kidman's home and the photos in The Sunday Telegraph purporting to be Pauline Hanson in lingerie come to mind. The British experience with privacy has thrown up a large number of cases in which publication is threatened in blackmail situations - disgruntled former lovers in possession of licentious photos demanding money with menaces, or people hacking into medical records. Justice Michael Tugendhat, the main High Court libel judge, told a recent London media law conference: ''We get about 20 a year of these and they are fairly open-and-shut cases. It is rare to get a genuine grievance.'' He means the public interest component of these cases is non-existent. That is not to say a proposed statutory right to sue for serious breaches of privacy does not pose risks for responsible journalism. As Dr David Rolph from the University of Sydney's law school pointed out at a privacy forum last month, defamation and privacy are two sides of human dignatory interests. Defamation is designed to protect the public self, privacy the private self. The 1979 report on unfair publication by the Australian Law Reform Commission, prepared in the days when Michael Kirby was its president, formulated a much more holistic approach to defamation and privacy. Now we are being served piecemeal components. With defamation the remedy is damages, as it is almost impossible for a defamation claimant to injunct or stop the publication of a libellous story.

For privacy, the proposed remedies run to a plump ambit list: damages, injunctions, declarations, correctional orders, an account of profits, orders for apologies and the delivery and destruction of documents. Defamatory stories in the media will frequently contain elements that arguably touch on privacy. What can be foreshadowed with certainty is that plaintiffs will run what Rolph describes as ''false privacy'' actions. They will seek to slip injunctive relief into what ostensibly are defamation actions. Even if a publication contains no elements of a serious invasion of privacy, the courts may well grant an interim injunction. By the time the interim order is overturned, after a full contested hearing, a time-sensitive story could be cold motherless dead, or plundered by an opposition publication not subject to the restraint. Immediately it will hamstring journalists' usual requirement to seek to interview the subject of the investigation. To do so would open the gate to an application to the court, and until the issue surrounding the extent of the invasion of privacy is determined, along with the many balancing requirements, the presses, and even cyberspace, would be stayed. It is not an exaggeration to say that the net effect would be to diminish even further the quality and balance that journalists should seek to achieve.

It will also pose a potential embarrassment for the open justice principle. A NSW Supreme Court defamation judge, Lucy McCallum, has asked: are the courts expected to be closed or make no-publication orders in privacy proceedings? And what are the consequences of that for the administration of justice? The difficulty for the media is that such a law is a minefield of judicial discretions. Judges will have to decide what is a ''reasonable'' expectation of privacy, whether the invasion of privacy has been ''serious'', what constitutes the ''public interest'' and how competing interests are balanced. Tom Blackburn, SC, an experienced media law barrister, points out that ''reasonableness in defamation is all too often equated with perfection … the defence of reasonableness of [media] conduct is all but useless''. Further, ''public interest'' is such an amorphous and subjective term that it can be puttied into pretty well any fanciful shape that momentarily grips the judicial mind. Conversely, if ''reasonableness'' is an impossible legal hoop through which journalists are expected to jump, it will be a cakewalk for privacy plaintiffs. A ''reasonable expectation of privacy'' giving rise to remedies will be anything that can deflate an arrogant media. Then there are all those unanswered questions, succinctly posed by the government's issues paper. Should privacy damages be capped? Should damage be proved at all? Should ''fault'' on the part of the journalist be established? Should an offer of amends be available? Should companies and dead people have a right of action?

Then there is the weighing of competing public interests that judges are supposed to address, plus other challenging variables, such as the relationship between the parties, the public profile of the claimant and his or her vulnerability. By the time a judge has applied a whipper-snipper to all that, journalism will be shredded. There are already numerous protections for invasions of privacy, including criminal sanctions and restraints under listening devices legislation. Even if the Commonwealth got its act together and legislated to provide a separate cause of action for so-called serious breaches of privacy, who is to say the states would pass mirror legislation? It all looks too fraught and too fanciful. justinian@lawpress.com.au Follow the National Times on Twitter: @NationalTimesAU