Webdiary - Founded and Inspired by Margo Kingston

This is the first part of a speech delivered by Paul Keating yesterday evening at the University of Melbourne. The full text can be read here. And thank you once more to Rupert for dumbing down public discourse, not just in Australia, but right through the Anglosphere. (Odd, isn’t it, that he’s so precious about his own privacy?)

The Privacy Imperative in the Information Age ‘Free for All’

Address by Hon PJ Keating

The Centre for Advanced Journalism

University of Melbourne

4 August 2010

‘The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste, the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. …In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.

Some of that language is a give away - that it wasn’t written by me, or written yesterday. But the content is highly relevant to a discussion about privacy and the media, as a trip to the local newsagent, or time spent in front of the television, or online will quickly affirm.

The quote is from The Right to Privacy by Boston lawyers Samuel Warren and Louis Brandeis, published in the Harvard Law Review in 1890, perhaps the most famous attempt at a definition of privacy.

Warren and Brandeis wrote about the ‘right of the individual to be let alone’, a right they put alongside ‘the right not be assaulted or beaten, the right not be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.’ They of course acknowledged that the right to be let alone was not absolute, and must on occasion give way to a higher or general public interest.

However, they said:

‘The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented.’

Warren was said to have been prompted to write after a newspaper published the guest list of an ‘A’ list dinner party he hosted in Boston. Brandeis went on to become a justice of the Supreme Court.

Both writers would turn in their respective graves at developments in the 120 years since. Whole industries now revolve around so called celebrity, fame, rumour, and gossip; often more correctly straight fiction which is published these days, often by media organisations. These organisations proclaim the importance of free speech, in the dissemination of news, but clearly are more at home in the entertainment business.

The Warren and Brandeis concept of privacy strongly influenced the development of the law in the US and elsewhere, although as others have pointed out, ‘the right to be let alone’ as a bald statement is meaningless (a person engaged in criminal activities has no such right), and is difficult to distinguish from other legal concepts, such as assault, nuisance and interference with bodily integrity.

Privacy has been enshrined as an internationally recognised human right in the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. And Australia is a party to both. Article 17 of the Covenant states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Freedom of expression is also an internationally recognised human right in Article 19 of the Covenant.

These rights are not absolute, sometimes conflict, and often need to be balanced and reconciled. Importantly, free speech means freedom governed by Law. (James v Commonwealth (1936) 55 CLR, 56)

Privacy in a broad sense is under attack these days on a range of fronts. Electronic surveillance, terrorism laws, growing police powers, business practices associated with information mining and marketing, and new technologies.

And the battle Warren and Brandeis fought, against the evil of gossip, has been well and truly lost with the passage of time.

However, the right to what I might call privacy, remains an issue; particularly where to draw the line between freedom of expression and any remaining right an individual has to have some control over the gathering and publication of information about personal aspects of their life. And what can or should be done when that line is crossed.

I take issue with and repudiate those who assert that privacy in modern times is dead and, that we should get over it. And with those who claim the current framework within which the media deals with privacy issues and concerns is effective and works well. It is of course, ineffective and works, in the main, to the benefit of media organisations.

I also want to lend support to the case made strongly and convincingly in two Law Reform Commission reports that you won’t see widely reported or subject to objective analysis in the media: that the law should provide recourse, in the event of an unwarranted serious breach of an individual’s privacy by the media - or anyone else for that matter.

These issues are topical owing to obvious examples of questionable calls about balancing privacy and freedom of expression. They are there for all to see. Some leaders of the industry and the profession dismiss errors as unfortunate, inevitable and rare, and claim a strong and continuing commitment to ethics and values that include respect for privacy. I know many good editors and journalists struggle with these issues, conscious of their responsibility to get it right, and the harmful effect of getting it wrong.

But many, like me have the impression that ‘the tone at the top’ and the practice of journalism in many media organisations is driven by other more pressing values. Of course it’s hard to generalise, but Margaret Simons, who authored The Content Makers suggests, and research by Denis Muller for his PhD at this university in 2005 and with 27 years’ experience in the profession confirmed, ethics does not enjoy a high profile in the newsroom. Indeed, many of those involved apparently have little more than a passing knowledge of the issues. Ethical considerations can complicate life for those, keen to get the story. Muller described it as a ‘sorry picture.’

Or, as Professor Mark Pearson puts it:

‘The reality is that editors and news directors are motivated as much by circulation and ratings as by a public duty to deliver the news…. There may be a range of profits or costs resulting from a story involving a privacy intrusion, including gained or lost circulation or ratings, advertising, syndication rights corporate reputations, legal damages and court or regulator costs. ….there is little doubt journalists go through

such a process, either formally or informally, when deciding to run with a story that pushes the privacy margins.’

Often questionable calls involve people in the news for other reasons: photographs claimed to be of a redheaded woman engaged in politics, scantily clad in a motel room with someone else thirty years ago; of an apparently happily married government minister leaving a gay men’s haunt; or of a so-called celebrity in the shower. The right and wrongs of these calls tend to become topics of public discussion themselves.

Probably much more frequently - although no-one seems to keep tabs - individuals going about their daily life or momentarily caught in the spotlight then become subject of a questionable call: those leaving court, particularly where they react angrily to being filmed always seems to have news value; as did a full frontal front page photo of a family that heard the news of the death of a family member for the first time in Victoria’s bushfires last year.

Then there was the photo in Sydney papers last year of two small children (faces not visible) of a murderer just convicted, one wearing a school uniform on the way to school.

And in another, a badly injured and distressed son whose parents had been killed in a boating accident, angrily seeking to avoid a camera recording his stretcher borne arrival at hospital.

Just about any day in the tabloids and any night on A Current Affair or Today Tonight you will see examples, including foot in the door interviews, claimed to be necessary and justified by the media’s right to know, and to publish just about anything they like.

The issue of the media and privacy is also topical owing to proposals in a 2008 report by the Australian Law Reform Commission on Australia’s privacy laws. The report, the result of two years research, consultation and analysis, runs to 2700 pages in three volumes. It put forward 295 recommendations for change with the general aim of modernising, simplifying, and streamlining laws that are generally seen to be dated, complex, confusing, fragmented and full of gaps and inconsistencies.

Four recommendations are of direct relevance to the media. None have yet received a response from the government. They propose changes to, but continuation of, the largely self-regulatory arrangements that are a condition for the exemption media organisations enjoy from privacy law. The ALRC argued changes were necessary because of ‘ongoing concerns about the capacity of a self-regulatory system to preserve the tenuous balance between the public interest in freedom of expression and the public interest in adequately safeguarding the handling of personal information’.

This important report also recommended legislation to establish a general statutory cause of action for breach of privacy subject to a number of qualifiers to ensure the protection of other public interests. One of the reasons given was to create more certainty for everyone – the media included – as to legal rights, rather than leave the issue entirely to case law with judges developing the common law.

The Commission (supported in argument by a separate report by the NSW Law Reform Commission in 2008) made clear that the proposal for a statutory cause of action is not aimed specifically or solely at the media. The proposal is for a right to seek redress for a serious interference to privacy including interference with an individual’s home or family life; unauthorised surveillance; or where an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed. Of special interest to the media of course, is that it would also extend to an interference with privacy involving disclosure of sensitive facts relating to an individual’s private life, subject, to a rider concerning the public interest in people being informed about matters of public concern, and the public interest in freedom of expression.

Reaction to the ALRC report - not limited to the proposed cause of action - took on an ‘end of the world as we know it” tone in some media circles. The report and the recommendations were dismissed by industry leaders such as John Hartigan of News Limited, and the Australia’s Right to Know coalition on the basis that ‘the current media privacy framework is effective and working well’.

Hartigan asserted ‘there are very few complaints, investigations and breach findings against the media for breaches of privacy’.

The Australian’s Legal Affairs Editor Chris Merritt labelled the report ‘outrageous’.

On the cause of action, an editorial in The Australian set up a marvellous straw man:

‘Privacy is important. But it would be a serious mistake to remake the rules governing the operation of the media by enshrining privacy as an inalienable right which, at all times and in all circumstances, trumps all other considerations.’

This despite the fact that the ALRC specifically stated the cause of action should only be available for a serious breach, and ‘privacy interests are not to be privileged over other rights and interests’.

There were confident predictions from some that the proposal if acted upon would put an immediate end to investigative journalism, notwithstanding that the ALRC concluded that the proposal ‘should not hinder legitimate investigative journalism as described by media groups to this Inquiry. For example, allegations of misconduct or corruption in public life would not fall within the (proposed) zone of protection’.

Some media voices called for calm consideration, suggesting a need to get the house in order before jumping to the barricades.

Jack Waterford, Editor at Large at the Canberra Times, while mindful of the need to protect freedom of the press and freedom of speech commented about the wave of criticism of the ALRC report particularly in News Limited publications. With an eye for self-interest when he saw it running, Waterford said:

‘The public ought to be quite cynical (of) the fact that some sections of the commercial media thrive and profit from invading the privacy of celebrities, starlets, models and sometimes ordinary non-consenting members of the public who have stumbled into a public spotlight. Trivial gossip has become bigger and bigger business in most cases with the implicit consent of most of the ‘victims’ but has very little to do with the public interest, or with reasons why the media can, or ought to be able to, claim that in respect of its monitoring of the exercise of public power it is acting in the public interest.’

Matthew Ricketson in The Age thought some of the claims for free speech for the media celebrity industry were simply laughable:

‘In the weeks leading up to the release of the Australian Law Reform Commission's massive report on privacy, the Right to Know coalition has been sounding the alarm at the prospect of a new law against invasion of privacy.’ ‘Privacy threat to celebrity coverage'' was the headline in the Media supplement of The Australian on July 31 (2008) for its lead story, which began: ‘the celebrity media industry could be thrown into turmoil by moves to restrict reporting on public figures’. ‘Am I the only person (Ricketson asked) who thinks this reads rather like an item in the satirical American newspaper The Onion or an out-take from The Chaser?’

Well no Matthew you’re not.

Another prominent industry leader, Mark Scott of the ABC, also broke ranks in suggesting that the media should seek to negotiate a suitable outcome on the proposed statutory cause of action rather than leave the development of the law in the hands of the courts.

But let me return to those questionable calls for a moment.

News Limited’s Sydney Daily Telegraph conceded that the redhead alleged to be in those photos published last year in the lead up to the Queensland election – the ‘other redhead’, Pauline Hanson - wasn’t her, and according to reports settled a legal action she commenced soon thereafter. The Deputy Editor’s first go at defending the publication of what at the time, the Telegraph insisted were photos of Hanson, was the ‘public interest.’ When questioned about the precise public interest involved she said ‘That's for our readers to tell. That will be determined by the number of people that buy the paper’. A bit similar to the line by the then editor of the same paper who at the time defended the publication online of a photo taken by a phone camera of Sonny Bill Williams and actress Candice Falzon in flagrante in a toilet cubicle with the door closed at a Sydney hotel. He told Monica Attard: ‘it is currently the second highest read story of the year so far. The readers clearly loved it.’ There we have it then.

Hanson would not have succeeded under the proposed cause of action because she claimed, and News publications eventually conceded, it was not her in the photos, so

there was no serious breach of her privacy. Whoever was in them has not stepped forward - perhaps with an eye to maintaining privacy concerning happenings thirty years ago. The public apology by the Telegraph Editor to Hanson was that the photos were of someone else, suggesting that had they been of Hanson, the public interest lay in their publication, despite the passage of time and the irrelevance of the event to her campaign for office.

Peter Meakin of the 7 Network initially defended the outing of NSW Transport Minister David Campbell through footage taken from the street of Campbell leaving Ken’s of Kensington as in the public interest, in his use of the government provided car Campbell used to drive there. This was quickly dropped when it turned out there had been no breach of any rules or guidelines for use of vehicles, so other claims about the public interest in knowing the details of the private life of a minister of the Crown were quickly rolled out.

The incident of course raises the issue of whether anything done in public - leaving a gay haunt through the front door, visible from the street, for example, can be regarded as private. Mark Day for example argues that everything done in public is open slather to the media. Expectations of complete privacy in a public space for any of us have to be lower than ten years ago and those of someone in public life even lower, but all of us should have a right to go about entirely personal business in the public domain.

On privacy in the shower, the AFL cleared Brendan Fevola in March over his part in the publication of a nude photo of Lara Bingle in Women’s Day, and elsewhere, on the ground there as ‘insufficient evidence’ to show he had distributed the photograph, taken while the pair were having an affair in 2006. It was reported in March that Bingle was suing Fevola for breach of privacy, defamation and misuse of her image, prompting News Limited lawyer Justin Quill to almost chortle while offering his free legal advice in an op-ed published in the Herald Sun.

‘There is no right to privacy in Australia’. Quill said ‘I can write that a few different ways if you’d like, but it won’t change the position…You hear a lot of people talking about their right to privacy. But unless they’re talking about some moral right to privacy, they’re talking about something that doesn’t exist in this country…Taking a photo of a woman in the shower and distributing it is unquestionably reprehensible on any view. But we shouldn’t feel so sorry for Bingle that we demand a privacy law.’ Quill acknowledged she might possibly have a claim for breach of a confidence, but on privacy rights, nothing – and right from the relevant authority in the land; the News Limited lawyer.