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Under the tort for serious invasions of privacy, a person can take action against individuals and organisations for either physically intruding on their private space or misusing information that relates to them in circumstances where they have a reasonable expectation of privacy.
The laws contain a defence for journalists who are bound by professional standards, if the content they produce has “the character of news, current affairs or a documentary”.
If tested, the case could have had consequences for all media outlets in outlining what constitutes newsworthy content under this defence.
Lawyers for the Herald Sun had previously argued the stories were not “idle gossip” and that details of the Groths’ relationship were already public through a previous interview with the couple that stated they met at the tennis club.
They also argued that the claims about the relationship were being weaponised internally by members of the state Liberal Party.
The Groths’ barrister, Sue Chrysanthou, SC, told a Federal Court hearing this month that the articles did not constitute “journalistic material” as they were not a “factual presentation of information”.
“News is not fantasy,” she said at the time.
Chrysanthou also noted that in the defamation case, the paper was not seeking to use a truth defence, and would instead apply a public interest defence.
To rely on this defence, the Herald Sun would have had to establish there was a public interest in publishing the stories about Groth and his wife and that the paper acted reasonably in doing so.
At the hearing, Justice Shaun McElwaine said it would be an “extraordinary outcome” that malicious, false, completely fictitious articles could be considered to have the character of news, and one that parliament “didn’t really focus attention on” when the laws were drafted.
“I think we can agree this is not simple,” he said.
Herald Sun editor Weir previously defended the stories, saying: “We stand by our reporting on a matter of public interest, covering important issues which could have a major impact on Victorian politics in the lead-up to an election.”
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