What is so touchingly gormless about University of Sydney professor Barry Spurr’s slurs is that he should commit them to writing and send them around by email to friends and colleagues.



It’s as though he was begging someone to forward what he thought were amusing little chortles to the rest of the world. Abos, Mussies, Chinky poos, whores, bogans, fatties, slobs, people who don’t speak properly – all have been part of what Spurr now characterises as either a whimsical or linguistic game.



Others can’t discover the whimsy and regard the emails as the deeply unpleasant outpourings from a man whose job it is to help students (some of whom would fall into one or more of his despised categories). That he is also advising the curriculum review committee is certainly another public interest ground that could defend New Matilda’s publication of his correspondence.



So does this amount to a breach of the poetry professor’s privacy, and does he have a remedy?



Spurr’s lawyers characterise what has happened as a “thief” hacking his emails and breaching his privacy. This, they argue, is sufficient grounds for injunctive relief.



At first blush justice Michael Wigney, who had been hearing the interim injunction application in the federal court, doesn’t seem terribly moved. Certainly, he didn’t have much time for the argument based on the privacy act: “A more labyrinthine, opaque piece of legislation I have yet to discover ... legislative porridge ... where almost every word is defined in ways that are counter-intuitive.” In any event, with the available exemptions the media can drive a horse and cart through the privacy act.



The next claim was that the publication was actionable at common law as a breach of the “tort of privacy”. Sandy Dawson, counsel for New Matilda, was quick to point out this tort doesn’t exist in Australia. Indeed, it is the subject of recommendations by the Australian Law Reform Commission in its recently released report, Serious Invasions of Privacy in the Digital Era.



The commission has designed a tightly constructed cause of action in Commonwealth law for really serious intentional or reckless breaches of privacy. Judges would be required to weigh the public interest in privacy against other public interests, such as freedom of speech, freedom of the media and national security.



The proposed remedies would be everything you can think of, plus the kitchen sink: damages (including damages for emotional distress), injunctions, account of profits, delivery up, destruction and removal of material, corrections, apologies and declarations. Attorney general George Brandis has shown scant interest in the report and it doesn’t appear to be on his radar while he busies himself with the war on terror and developing new privacy invading metadata retention laws.



However, if the tort of serious invasion of privacy did exist, Spurr would be in with a real chance of success. You can confidently predict on which side most judges would land when balancing the interests of the media with the interest in protecting personal reputations.



The other ground in Spurr’s application is breach of confidential information. So far, the judge also seems unimpressed with this line of argument.



“My reading is that they are his emails, expressing his opinions - they reveal information relating to his personal thoughts,” Wigney said. “When one looks at the emails published to date, it’s very difficult to see what in the emails could specifically be described as confidential.”

Interestingly, the professor has not argued that publication of his correspondence violated his copyright, for which injunctions and damages would be available. Maybe privacy could have been back-doored through copyright?



In any event, Spurr’s case does show there is a vacuum in Australian law or, as lawyers like to call it, “lacunae”.



There are cases where there have been some pretty outrageous breaches of individual privacy, including Channel Seven’s outing of former NSW Labor minister David Campbell’s attendance at a male steam bath, Ken’s Karate Klub, now known as Kens of Kensington. Channel Seven reporter Adam Walters flailed about to justify the story, while the Australian Communications and Media Authority produced some stellar contortions to discover a public interest, which let Seven off the hook.



On the international stage there was the recent publication online of hacked nude photos of the actress Jennifer Lawrence. It’s difficult to see the public interest there – as opposed to what might be interesting to the public.

Spurr’s arch, high camp style is reminiscent of the tone of David Flint and Alan Jones’ “love letters” at a time when Flint was supposed to be the broadcasting regulator.



Media Watch and others published the torrent of gush between these two admirers, but it was so much in the public interest to know that the chairman of the Australian Broadcasting Authority was metaphorically in bed with the commercial breakfast announcer that there was never the remotest hint that the publications were actionable.

NSW supreme court appeal judge, the late Roddy Meagher, used to make sneering remarks, privately and publicly, about “Abos” and “hairy-legged lesbians” and strange people “cloned in bottles”. Among his friends and colleagues, this was all part of Meagher’s idea of socially conservative, put-down humour. He was quite open about it, never claiming he was indulging in a “game”. No doubt he would have recused himself if a hairy-legged lesbian had been a litigant before him.



The hearing date for Spurr’s case has been set for 8 December. There, breach of confidence will be fully argued along with further applications that may well include taking down from the internet what has already been published.



At that point the “whimsical game” will be much less fun.

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