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New Matilda and Spurr spar in Federal Court over leaked emails

Alexi Polden and Peter Walsh report on the legal stoush between suspended Professor of Poetry Barry Spurr and online news site New Matilda.

sparrspur

Suspended English Professor Barry Spurr has dropped his attempt to compel New Matilda to reveal the source of controversial emails leaked last week by the online news outlet.

Today’s hearing in the Federal Court descended into a debate over Spurr’s failure to provide a statement of claim, which would – as the name suggests – detail Spurr’s demands and relevant legal footing.

The case opened with theatrics, with Spurr’s barrister Arthur Moses SC claiming Spurr was “collateral in an attack [by New Matilda] on the federal government”. Justice Wigney seemed unconvinced and instead directed the debate into a more manageable discussion of the scope of the Commonwealth Privacy Act, and the common law claim of confidential communications.

New Matilda was represented by media law expert Sandy Dawson, who responded to Moses’ claims, and argued the Privacy Act did not apply to New Matilda, as it is both a media organisation and small business, which made less than $3m a year. Justice Wigney questioned whether unsolicited information, such as the emails in question, could constitute information collected for the purposes of the Act.

The debate over the common law claim of breach of confidence further complicated matters. Dawson arguing that it was for Spurr to establish what made the emails confidential. Moses, in response, attempted to analogise the leak to the leak of, a sex tape.

Wigney questioned how Spurr could expect to characterise what he called “whimsical expressions” as confidential communication, or indeed as something akin to a sex tape. Dawson called it “extraordinary” for someone in Spurr’s position not to think that emails of this nature did not have the capacity to “go viral”.

Honi understands that academics at the University are aware of the fact that ICT policy permits third parties, such as university administrators, to access emails sent from their university accounts. The policy also requires that users “not write anything in an email that they would not sign off in a memorandum”.

While Spurr was not present in court, the University of Sydney’s own media expert, Associate Professor David Rolph made an appearance, highlighting the potential importance of the case in resolving what Justice Wigney called the “legislative porridge” of the Privacy Act and the scope of the law confidential communications in Australia.

The case follows last week’s protest action, during which hundreds of students called on the University to fire Spurr.

The case continues on the 8 December.

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