Law Report episode on a potential statutory right to privacy 30 October 2012

October 31, 2012 |

Yesterday’s Law Report on Radio National covered the mooted statutory right of privacy.  It is found here.

The transcript of the program, with my annotations, provides:

Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. Currently both Australia and the UK are engaged in a fundamental re-examination of how we regulate the media. The UK is awaiting the release of the much-anticipated findings of Lord Justice Leveson’s inquiry into the News of the World phone hacking scandal. Here in Australia we’re awaiting on Canberra’s response to two recent inquiries or reviews. We’ve got the Finkelstein Inquiry, it’s calling for statutory regulation of all sectors of the media, including, for the first time, newspapers. There’s also the Convergence Review; it recommended an industry-led body to overseas journalistic standards of news and commentary across all media platforms. But what I want to concentrate on today is another big potential change to the Australian media landscape.

In September 2011, the federal government released a discussion paper titled ‘A Statutory Cause of Action for Serious Invasion of Privacy’. It received a large number of submissions, and we’re currently waiting on the announcement from Canberra over whether or not it will press ahead, and for the first time in Australia create a statutory right to privacy. Well, today a conversation with two leading media law experts about privacy. Peter Bartlett is a partner with Minter Ellison. He’s one of Australia’s leading media lawyers. He provides round-the-clock advice to The Age newspaper. Michael Rivette is a barrister who has a great deal of experience in media and privacy law. First, a broad question to Michael: in the 21st century does the concept of privacy have any relevance?

Michael Rivette: Of course it does. Fundamentally, the issues of privacy, to me at least, and actually as the foundation of where privacy comes from, is that it’s a human right; it’s a right of human autonomy, the right that an individual has to keep certain things about them private. Now, I know if you look at this on a personal basis there are things about my life that I certainly wish to keep to myself, and that the law currently says I have a right to keep to myself.

Damien Carrick: Peter Bartlett?

Peter Bartlett: There is clearly a right to privacy, but we do not need a new regime. We presently have a vast number of laws that protect privacy in the telecommunications area, the surveillance area, protection of children, the Family Court area, protection of victims of sexual assault and so many other areas; there is already protection there. You also look, I think, at the complaints to the communications and media authority, and to the Australian Press Council. There are very, very few complaints in relation to privacy. We are not in a situation where we need statutory intervention.

The argument Peter Bartlett makes is similar to that advanced by the Australian and other media outlets from the outset of the debate.  The “vast number of laws” described is totally illusory in terms of privacy protections.  They do not cover the field and their effectiveness varies from reasonable to virtually useless.  As importantly most do not provide an individual with an ability to enforce his or her rights, often relying upon the Privacy Commissioner, the police or ACMA to decide whether to exercise their discretion and then prosecute an action.  The results are far from encouraging.  Using the example Bartlett provides:

  1. the telecommunications area.  The protections are statutory but either involve a criminal prosecution or a claim through ACMA.  While some intrusions warrant criminal prosecution, that prosecution is conducted by a prosecuting agency.  Why shouldn’t a person have a concurrent right to bring an action through a civil proceeding?  It is not an either or situation.  Or at least it should not be.
  2. the surveillance area.  Presumably he refers to workplace surveillance and the sureptitious use of listening devices or video devices within a private place.  The problem is that the protections are matters involving a third party exercising discretion whether to prosecute.  The right of the individual to take action is limited.
  3. the Family Court and victims of sexual assault.  There is a blanket rule of anonymity but this has never been a significant issue in the privacy debate or a privacy protection issue.
  4. Complaints to the media authority and Australian Press Council.  Both are anaemic in their protections and in the case of the Press Council the process and the outcomes are at best disappointing.

But even assuming Bartlett is correct about all those protections as being effective it does not cover many other instances of privacy invasion, which don’t involve the Family Court, don’t involve the media and don’t involve surveillance equipment.

Damien Carrick: Well, let’s talk about what the current state of the law is. You talked about some of the protections in legislation, but there are of course, to some extent, protections that can be sought through our courts. Those protections differ from country to country. I’d like to talk first about the UK, where the law has developed far more broadly and has gone a long way further down the road than here.

Michael Rivette: Well, it’s a moving feast, to be quite honest, but can I just stop, before I answer that, there’s something that I’d like to comment in, just in relation to what Peter just said. When we talk about privacy issues, what we tend to talk about is a polarisation between an individual’s right of privacy and the right of media, and when we define the whole argument in media terms, then what we’re really doing is we’re only dealing with the issue of privacy in a very narrow slice, because privacy is not an issue that solely deals with media and media intrusion, and in fact the great intrusion into individual privacy doesn’t happen in media that’s regulated at all. It’s happening on the social media;

Exactly.  Framing the debate as being privacy v media and freedome of expression is a false dischotomy.  Privacy issues extend well beyond the operation of the media and its impact on individuals.

it’s happening in 21st century forms of communication. And so to polarise this whole debate as being a debate that’s solely the issue of the balance, as we say, the right of freedom of expression, with the right of privacy, I think does the whole debate an injustice, to be quite honest. But clearly what actually occurs…the reality of the situationin the absence of some statutory cause of action, the reality is that most of the leaps that occur through the common law, if we’re talking about the development of the common law, occur in a media setting, and indeed, to come back to your question, that’s actually what occurred and has occurred in England: the great leaps have arisen from that…from that situation.

Recent UK cases have highlighted that the issue does not only involve media.  (See McKennitt v Ash and XYZ v Gewanter & ors).

Where we start in England is, we start with the European Convention of Human Rights. England is part of that convention, signed up to a code that the English courts had to adopt. It didn’t say what mechanism had to be used, but it certainly had to protect, under Article 8, the right of privacy, and that had to be balanced with the freedom of expression under Article 10. Now, although we don’t have a convention—that convention—we do have an international convention that Australia is a signatory to, and under Article 17 we have a right of privacy, so the same sort of balance has to occur. It hasn’t yet occurred through the courts, that balance, but that’s the next stage of the whole debate.

Damien Carrick: So that context, the European Convention on Human Rights, is the rubric through which privacy cases have gone through the courts. There have been some very, very interesting ones; notably the Max Mosley News of the World case a few years ago. I think they filmed him engaged in a consensual sadomasochistic sex orgy with several hookers, and the courts ordered him something like £60,000 and an injunction. But then there have been other cases in recent times; I think there was a footballer, Rio Ferdinand, and the courts have been moving a bit away, more towards protection of freedom of expression as opposed to protection of privacy. In very brief terms, what was that case about?

Michael Rivette: It’s quite a controversial case, actually, because Ferdinand was involved in a relationship—extramarital affair. He had previously had a history, but the impression had been created that he was somehow reformed, and what the court said was, ‘Well, given his position, as captain, it was of public interest that they know this, because of the image that he had allowed to be projected that he had been actually reformed.’

Damien Carrick: And indeed I think a previous captain had lost his job for a similar reason.

Michael Rivette: Exactly, so that was all factored in. So you could see a decided shift from the Mosley case back towards the balance of the freedom of expression.

Damien Carrick: Here’s the lawyer for the newspaper, outside the London court, immediately following the Rio Ferdinand decision.

Lawyer: I think it is unusual for newspapers to win privacy cases; the trend has certainly been against…in favour of privacy claimants and against defendants, but I don’t think we won because the judge correctly carried out the balance. He looked at Rio Ferdinand, he looked at Rio Ferdinand, what he’d done, and he also looked at comments that had been made by the Football Association, and the England manager about the position of the England captain, and took all that into consideration.

Damien Carrick: So there’s this pendulum which is swinging back and forwards, but of course in the UK a few years ago there was enormous concern about the use of injunctions by public figures to prevent newspapers from publishing details such as the extramarital affairs of footballers. I mean, we had the Ryan Giggs case, Peter Bartlett, which was extraordinary, and picking up on what Michael Rivette says about social media, that was immensely important in that case.

Peter Bartlett: Well, it was important in that case, but I think that case points out that parliament should not pass statutes that they can’t enforce. Courts shouldn’t pass or make judgments that they can’t enforce.

Damien Carrick: What happened was, was that there was an injunction preventing the publication of details about Ryan Giggs’ extramarital affair, but then there were 75,000 tweets across the blogosphere or the twittersphere, and then it became so ridiculous that a member of one of the houses of parliament in the UK named Giggs in parliament.

Peter Bartlett: If the mainstream media had breached that injunction, the court could’ve taken contempt proceedings, but the court cannot take contempt proceedings against 75,000 tweeters, especially where a lot of those people could not be identified and were probably out of the jurisdiction.

Damien Carrick: It goes to the reality of the exchange of information in the 21st century.

Peter Bartlett: It’s very true, very true, and it does point out that there is a significant limit on the power of the courts to enforce their judgments with social media, and the same goes for any statutory privacy law.

Damien Carrick: In more recent times there has been enormous concern about phone hacking and the scandal at the News of the World. We had of course the terrible case of Milly Dowler, a murdered teenager and her mobile telephone was hacked into by News of the World journalists. How does the terrible phone hacking scandal feed into this conversation?

Peter Bartlett: I was in London the week that that broke—the end of that week, when the last edition of News of the World out—and I had a meeting that week with Lord Justice Leveson, and it was one of the most extraordinary and depressing weeks, I think, in the history of the media. But it’s important to point out that what happens in the UK, and what Lord Justice Leveson is looking at, is a million miles from what happens in Australia. I’ve been in this industry for a long, long time. I’ve never seen evidence of the hacking and some of the outrageous behaviour that took place in London.

This is another argument run by opponents to a statutory right of privacy; the culture in the UK is nothing like the culture here so we do not need the UK’s response to the problem here.  The point is, as the Australian Law Reform Commission report of 2008 (which was released long before the hacking scandal errupted) and earlier reports of the Victorian Law Reform Commission and its New South Wales counterpart, that there is a need to protection an individuals privacy as a right.  Common law protections have not been adequate nor are they developing to meet the changing social and technological environment.

Damien Carrick: Two points: so, you’re saying that the tabloid culture, the media culture, in the UK is very different from Australia, and what might be a way forward in the UK might not necessarily be a way forward in Australia.

Peter Bartlett: Totally, totally different environment. Lord Justice Leveson is looking at a situation where the most outrageous behaviour has taken place. Finkelstein in Australia and the Convergence Review were looking at a situation and a system that actually works reasonably well, and were looking at ways to improve it.

What Bartlett glosses over is that the TV culture, particularly with the tabloid consumer affairs shows have a track record of intruding into individuals privacy well beyond what the story justifies or even a broad definition of public interest.  This is noted in Carrick’s paper (see below).

Damien Carrick: Second point, there have been an enormous number of civil cases in the UK courts arising out of phone hacking, and are they along the lines that we’re talking about here?

Peter Bartlett: Yes they are, and these were outrageous situations where people were hacking into phones, et cetera, and totally breaching people’s rights to privacy, and now the courts are looking at all of those situations and the courts have not actually created a tort of privacy in the UK. And in fact the recent parliamentary committee in the UK recommended that they not have a statutory tort of privacy, but said that the area develops so radically over time—that our concepts of privacy change so much—that it’s necessary to allow the courts to decide, over time, just what is private and what isn’t private.

And a statutory right to privacy has that ability provided the elements of the action are drawn carefully and not codified.  Section 52 of the Trade Practices Act (now Consumer Code) is a very effective provision but one that is drawn in brief and general terms.  It has been subject to significant review and development over time.  It is now a very important part of consumer protection and commercial law.

Michael Rivette: They’d still do that under statutory course of action. See, I’ve really waxed and waned with this whole issue of a statutory tort, because quite frankly, you know, with what we have now, as an experienced litigator,

Bit of a plug eh…

I can actually either stop or seek damages or equitable compensations for most breaches of what is fundamentally privacy. Of course it’s couched in terms of either breach of confidence or under one of the consumer protection laws, or under trespass, or under the Surveillance Act. It may be couched under different terms, but I can clearly protect it now. What hasn’t been decided is how the balance of freedom of expression actually arises.

I don’t completely agree with that proposition.  While the breach of confidence for misuse of private information is available and with Giller v Procopets, sustainable it is still a more difficult claim to frame than the UK claims.  Relying on trespass and consumer protection laws involves a sometime artificial construct which is less efficient that pleading a cause of action that deals with the right to be protected, that of privacy.  The Australian courts at a superior court level are far less amenable to stretching the various statutory and common law causes of action to meet the very distinct issues associated with a privacy related claim.  From a policy perspective it is better to have a distinct right protected under a distinct head of action, be it in common law or in equity or by statute (or a combination) rather than rely on stretching parts of existing claims to deal with the facts in dispute.

Damien Carrick: Michael Rivette, you’ve been involved in a number of very important cases here in Australia, which have looked at these issues. One of them was Giller and Procopets, and I understand that involved a man who…dissolving marriage, a man who sent sexually explicit video footage of his wife to her friends and her family, and the court found that there was a breach of confidence, and he was liable for damages.

Michael Rivette: The critical thing with Gillar was that for the first time the courts said breach of confidence would respond to distress injuries. Previously it had to be a recognised psychiatric illness, so if the media take a photograph, let’s say, of Nicole Kidman’s child, Nicole Kidman doesn’t have a nervous breakdown about that, she gets distressed. Now, previously breach of confidence wouldn’t respond to that. After Gillar it does, so it really…that was the final piece in the jigsaw that made breach of confidence, at least in Australia, the cause of action that could respond to most privacy issues.

Agree.

Damien Carrick: So we do have a breach of confidence action, but there haven’t been any cases to date involving the media.

Michael Rivette: There are a lot of cases. I’m involved in a lot of cases where breach of confidence is actually used in situations, both in a situation where injunctions have been sought and been granted, and where ultimately the case is settled.

Damien Carrick: So why are these matters settling? Why aren’t the media organisations taking them to court?

Michael Rivette: I don’t know. Probably the ones that I’ve been involved it’s been quite wise to settle it. I think there were cases that were lay down miseres that the media would’ve lost.

Damien Carrick: Peter Bartlett? Why are the media lawyers settling all of these cases?

Peter Bartlett: There are not a great number of privacy related breach of confidentiality actions issued, but those that are, like defamation actions, like commercial litigation, the lawyers on both sides, the parties on both sides would analyse the issues, the risks, the costs, all of the other factors that go into a decision as to whether a matter should be settled or not.

Reporter: Geoffrey Edelsten has one his court case to get back $5,000 he lent to a woman he met on a sugar daddy website.

But in that case, Norman South Pty Ltd & Anor v da Silva [2012] VSC 477 (18 October 2012) (discussed here and reported here) the court adopted a very tentative approach to breach of privacy/misuse of private information opting for a more commercial law interpretation of the breach of confidence actions.  It highlights a generally conservative approach taken in this area to date (notwithstanding the commentary of Gleeson CJ in ABC v Lenah Game Meats and the Court of Appeal in Giller v Procopets)

Damien Carrick: I’d like to talk about a case recently, a week or so ago, in Melbourne, involving Geoffrey Edelsten. Now, we have to be careful here because there are suppression orders, but he won a high profile case against a US woman that he met online, but there was an injunction on any discussion of their dealings. Now, there does seem to be a paradox here because Geoffrey Edelsten and his wife Brynne Edelsten are currently involved in a reality TV show called My Bedazzled Life, and these are people who are clearly making a living out of bringing people into their private lives, but they also want to control that access. Peter Bartlett, what are your thoughts?

Peter Bartlett: Well, the media actually appeared in that case to try and oppose a suppression order, or injunction, and a limited form of order was made, and it was made on the basis that there was a confidentiality agreement between the parties. It was a contractual thing, and on that basis the judge took the view that certain materials should be suppressed.

Damien Carrick: So, on the basis that there is a contract, rather than the nature of the contract?

Peter Bartlett: Exactly, and you would find very often in commercial litigation, for example, that material is deemed to be confidential. It might be sensitive to some business or other, and so it’s quite common in that context for orders to be made limiting publication.

Michael Rivette: Damien, your question, even if we take it out of the Edelsten context, which as Peter said was based on other considerations, your question does raise this issue: when a person trades off their personality and opens their lives for public scrutiny, do they lose the boundaries of privacy? And that’s a debate that’s occurring and has occurred all around the world. Do you lose that sphere of privacy that we have, albeit, you know, however limited it may be, do you lose that if you trade off it?

Peter Bartlett: Well, it’s a question of where the boundary should be, and that’s the difficulty in drafting any statutory law, because you look at Germany a couple of years ago, and Princess Caroline was photographed in the equivalent of the Champs-Elysees having a coffee with her children, and an injunction was granted. Now, that is going too far. If someone is in a major street sitting there having a coffee, then they’re…someone is allowed to take their photograph, in my view.

Michael Rivette: Certainly the European courts have taken a stricter approach, but this is the real…where the real debate, if we talk about public interest, arises, and it’s a classic…the classic case is the study of France. See, in France you have a sphere of privacy around you no matter where you are—public street, no matter where you are—but how that plays out is in a situation like this. Francois Mitterrand is having affairs. Well, in France that might get you brownie points, but in Australia it wouldn’t. He’s one of the leaders of the country, the press knows, everyone knows, no one reports on it. That surely has to have an impact on his moral character, and in Australia wouldn’t the public have a right to know this?

Second situation: Francois Mitterrand is suffering from cancer, but he’s running for election. The media know, everyone knows, but no one reports it. Isn’t that something that a voter should know, that here’s this person, suffering from cancer, he’s going to be making decisions that affect me, he may be going through chemotherapy or treatment, don’t I have a right to know? In France, no. Now, I wouldn’t want to live in a country where I don’t know about those things that affect me, and that really crystallises to me this balancing act between the freedom of expression and the right of privacy. It’s a very, very serious debate.

The comparator of privacy regulation between civil codes and common law is false.  And France has even stronger privacy protections within the civil code system of justice.  Those cases and their examples would carry slight weight in the Australian context.  The UK cases have referred to a number of Strasburg decisions from time to time but have not even come close to adopting the approach taken in France.  But the question of where does one’s zone of privacy extend, the public’s right to know and what other factors are involved is a perennial and universal one.  It is and always will be a matter of balance.

Damien Carrick: But isn’t the point that maybe we have the balance better here than in places like France, where maybe they have legislation?

Michael Rivette: I think, quite frankly, that the media is sometimes taking an approach that might be cutting off your nose to spite your face, to be quite honest. And why I feel this, is because once things are defined with a clear right of privacy, which we know is already there in the law but expressed under breach of confidence, and…but it must be balanced against the freedom of expression, once we…that’s enshrined, then it focuses people’s attention on what the balance is.

Peter Bartlett: The problem is, it is set in stone, and the courts will look at the actual wording of the statutory provision and in 10, 20, 30 years’ time, our views on privacy, our views on freedom of expression could well be significantly different,

Wrong.  Section 52 of the Trade Practices Act is a simple uncluttered provision which has been subject to considerable judicial consideration.  The jurisprudence has developed successfully over time and it has not frozen the mores of the date of its enactment into the present.

so we need the common law, we need the courts to have the power to make decisions on the changing circumstances from time to time,

The problem is that the courts in the rights area of the law are very tentative.  And often take the approach that the legislature should take the lead.  For example Legatt LJ in Kaye v Robertson [1991] FSR 62 stated, at 71, that the right to privacy “..has so long been disregarded here that it can be recognised only by the legislature.”  In Malone v Metropolitan Police Commissioner [1979] CH 344 Sire Robert Megarry VC stated, at 372, that “It seems to me that where Parliament has abstained from legislating on a point that is plainly suitable for legislation, it is indeed difficult for the court to lay down new rules of common law or equity which will carry out the Crown’s treaty obligations, or to discover for the first time that such rules have always existed.”  In Secretary of State for the Home Department v Wainwright [2002] QB 1332 at paragraph 94 Buxton LJ stated “It is thus for Parliament to remove, if it thinks fit, the barrier to the recognition of a tort of breach of privacy.”  Australian courts are equally tentative in developing the common law or equity to meet the issues of the current world, let along the problems of past intrusions in a simpler time.  In my view it is problematical whether the UK authorities would have developed as they did without the benefit of Articles 8 and 10 of the Human Rights Act.  Australia has no such underpinning legislation. The other issue is that in Australia there is a tendency of commentators in the media, especially in the Australian, to critisise “judge made law.” And yet the proposed solution is …judge made law.

not on the basis that we’ve got with our federal constitution, which so many provisions now are totally and utterly out of date, but can’t be changed.

Amending a law of the Parliament and the Federal Constitution are two different issues entirely.  More to the point, a properly drafted provision(s) should be able to meet the test of time.  These are issues not beyond the wit of good legislative draftsmen and a dilgent Parliament.

Michael Rivette: But I…see, I disagree, I think the fact that it’s enshrined in a piece of legislation certainly doesn’t stop the courts; it addresses the courts to the questions that they have to…have to ask.

Agree.  Like the courts consideration of section 52.

A clear body of law would be developed fairly quickly on matters that came before the court, but what would be really important, to my mind, is it would focus people’s attention on what their relative rights and obligations are, and you posed a question before, why is there not more litigation? And I’ll tell you why, because there is ignorance in the legal profession, and the classic example was Lara Bingle.

Reporter: The picture snapped on a mobile phone while Bingle showered has reportedly done the rounds of AFL players. It’s now featured in a Woman’s Day article, but publishers insist they’ve done nothing wrong and no money was paid for it.

Michael Rivette: The photograph of Lara Bingle that was taken by a footballer was taken as she came out of the shower, there was clearly horror on her face, it was in a private setting that was in…in the context of a sexual relationship that she was having. Sexual relationship is a clearly defined head of confidential information, and to my mind is clearly something that should remain private between the individuals; it’s a fundamental human right. I was astounded that people hit the airwaves and said, ‘No right of privacy, therefore, she’s got no cause of action’, and it was wrong, because she did have a clear cause of action; Giller and Procopets had been decided, she could’ve brought an action under breach of confidence to actually seek damages and to stop the further dissemination of that, those photographs. What she then subsequently did, or was alleged to have done, or I read that she did, was trade off the story. Now then, once she did that, she probably lost the rights to seek damages, because that would’ve been factored into the mix, but there’s great ignorance out there as to what the rights that currently exist, great ignorance, because it is a moving and developing feast. What a statutory cause does is it gets over that ignorance.

A statutory cause of action goes beyond having an educative function.  Much more.  Bingle had a cause of action, Giller v Procopets is clear authority for that proposition.  But a statutory cause of action provides a better basis for framing a cause of action and a defence, if any was available on the facts (which was doubtful).  Like Article 8 and 10 of the Human Rights Act in the UK, it provides a far better basis to proceed.

Damien Carrick: And Peter Bartlett, do you think that the privacy issues are slipping through the net, or do you think that we’ve got the balance right?

Peter Bartlett: I think we’ve got the balance right. I think that if we did have a statutory cause of action it would not be 95 per cent of Australians who would take advantage of it; it would be the celebrities, it’d be the rich and famous.

That is 95% assertion.  Giller was not a celebrity.  That is like saying that defamation cases are confined to people taking action against the media.  From my experience as a practitioner that is far from the case.  Many large cases involve individuals suing newspapers and TV or radio but there are many cases of less note that involve individuals taking action against other individuals over quite outrageous smears.  Similarly with privacy egregious behaviour is not the province of the media alone. That distorts the debate (as Rivette noted).

Damien Carrick: So, it would be Prince Harry with nude shots in Las Vegas or Princess Kate’s topless shots in France?

Peter Bartlett: They used to say, ‘What happens in Vegas stays in Vegas’, now they say ‘What happens in Vegas stays on Google.’

Reporter: Well, the Duke and Duchess of Cambridge are said to be saddened and disappointed at pictures published by a French gossip magazine showing the Duchess of Cambridge topless. The pictures are said…

Reporter: The French photos come just a few weeks after photos of a naked Prince Harry in Las Vegas were published in The Sun newspaper after they went viral on the internet.

Peter Bartlett: They are two totally different cases. We’ve got Prince Harry, reputedly with nothing on in a large gathering, at a party, where people were there and someone took, obviously, took photographs. So, you would not have too much sympathy for him in obtaining injunctions and obtaining damages for the publication of those photographs. Now, the Duchess of Cambridge is totally different situation, because the photographs were taken, they say, some one kilometre away, but where photographs are taken from a long distance away, it is a total breach of privacy, but not in the situation of Prince Harry, where he is in a large party.

Damien Carrick: So he had no expectation of privacy?

Peter Bartlett: Absolutely.

Michael Rivette: That’s the critical point, isn’t it? The issue is this though: it’s a matter of degree. If I have a dinner party and I invite six people around to the dinner party, two people arrive and for the first time to their friends they declare, or one of them declares, ‘I’m gay and this is my partner, but I haven’t yet told anyone and I don’t want anyone told.’ So during the course of this dinner party photographs are taken—and someone posts them on their Facebook or social media—that from the context of that photograph it makes it obvious that that person is in a gay relationship with someone, so therefore publishes that information. Is that private, is that not private? My belief is it is, if it’s in a context where it’s small, but if it’s in a larger context, that expectation of privacy actually wouldn’t be there.

And the law is developing at a pace in the UK considering these issues.

Peter Bartlett: But then you need to take into account, if the courts intervene and try and make an order against Facebook, how are they going to enforce it?

Michael Rivette: Yes, that’s the…that’s the…

And enforcement is a separate issue.  But even if enforcement, in some cases, is difficult does not mean having a cause of action covering the vast majority of fact situations is not good public or legal policy.

Peter Bartlett: The US courts will not recognise any order made in those circumstances by an Australian court.

That is true.  And Gutnick v Dow Jones is a good example of this.  But is this the issue?  How often does this occur?  Most cases, as occurs in most litigation, involves parties that have a presence in the jurisdiction.  Extra territorial enforcement can be complicated in commercial disputes.  But that is not a reason for having a cause of action.

Michael Rivette: How you really stop it is for the individual who’s about to post the photo to actually know that that’s the wrong thing to do. That’s where you stop it. If you have something that’s clearly defined, that’s spoken about, that’s in the press, that…it becomes part of the social conscience, and people realise, if they go, ‘Whoops, should I post this or not, because there’s that cause of action called privacy? I won’t post it’, then the law is actually working, but the moment people don’t understand and appreciate the boundaries…

While that may be the case on some level the purpose of a cause of action is to allow a person to bring an action and, in this case, protect a right.  The educative value is very much a secondary issue, if that.  As Sam Goldwyn said “if you want to send a message, use Western Union.” Legislators should always be wary of legislating sending messages.

Damien Carrick: I’m sure it’s happening in France and Germany and other places where the law is tight, so…so it is happening.

Peter Bartlett: People know what they should be doing and what they shouldn’t be doing, and simply having some law sitting there is not going to make it any different.

That is simplistic. The law of defamation acts as a break on poor reporting, inadequate research and more eggregious behaviour.  It does not guarantee good behaviour.  Nor should it.  Having a protection of privacy on the statute books may give cause for pause. But that is not the point.  If there is a right that should be protected then that right should have some real enforcement ability.  If people do not change their behaviour, fine. let them pay the price for infringing.  This is hardly radical policy discussion.

People know that if they do have a photograph of a sexual relationship with their ex-partner, it should not be posted.

But an injunction and damages award will go a lot further in reminding a malefactor that there is a price for infringing another’s right to privacy.

Damien Carrick: Finally, a separate question from whether or not to introduce a right to privacy is whether or not we should overhaul the way our media is regulated, and there, of course, is currently debate taking place in both Australia and in the UK where they’ve got the Lord Leveson Inquiry into the phone hacking debacle, and we’ve got the Finkelstein inquiry here, which recommended a statutory regulation of the press for the first time. Briefly, from both of you, would you like to see a statutory regulation of the press? I’ll start with you, Michael.

Michael Rivette: It’s a really, really difficult question this, isn’t it? I mean, it’s the reason that there’s so much heat in this debate is because it’s a really…it involves really fundamental and delicate issues. I said before, society can’t operate without a free press, and the concern is that once you have a government actually controlling the press through a body, albeit the Finkelstein report recommended it was only to be funded by, rather than to be controlled by, but the mere…

Damien Carrick: Set up under legislation?

Michael Rivette: Yes, set up under legislation, and it’s very close to the line, isn’t it? I don’t know, to be quite honest. What I do know is a situation where a media organisation can actually choose to be a part or not a part at the drop of a hat is not a situation that should be allowed to continue. So if the media are serious about regulating their own conduct, then it would have to be a situation, like we saw with West Australian Newspapers—part of the Stokes organisation—said, ‘No, sorry, we’re not going to be part of it’…that situation is what actually gives rise or gives some credence to, ‘well, we need some regulation’.

Damien Carrick: Peter Bartlett.

Peter Bartlett: Two issues: first of all, there are suggestions that the Gillard government is close to making an announcement in relation to a statutory breach of privacy. Well, I’ve heard it could be in the next couple of weeks. Now, I would find that very disappointing and very surprising, because we have Lord Justice Leveson is going to deliver a report late November, his report will, to a large degree, cover the privacy area, and it would be surprising and disappointing if our government was to announce reforms prior to looking at his analysis and deciding whether they agree or disagree with his analysis.

This is a nonsense argument.  The issue of privacy and whether there should a statutory cause of action has been the subject of discussion for over 10 years at a significant level and a long time before that in commentary. Lord Justice Leveson will no doubt add to the debate but the equitable cause of action for misuse of private information pre dates the inquiry by more than a decade and the Human Rights Act is 14 years old.  This is a variation of the “lets wait to see what happens…” which is followed up with a “we need to have a review/enquiry…”  A fancy way of just kicking the issue down the road until the heat goes out of the debate.  It has been used before.  It should not be used again.  Debate the issue, resolve it and if legislation is the outcome make sure it is the best model possible.

Damien Carrick: You’re talking there just about the statutory right to privacy or this broader issue around regulation?

Excellent point.

Peter Bartlett: On the privacy aspect,

Irrelevant.

and the same actually goes for media regulation: it would be very disturbing if we have statutory intervention in media regulation.

That is where the Leveson enquiry is relevant and its impact on any regulation of the media in Australia.

Damien Carrick: Of the print media?

Peter Bartlett: Of the press. We saw during the Howard government a colossal amount of pressure put on the ABC, on the basis that the Howard government took the view that the ABC was left wing. We see under the present government a lot of pressure put on The Australian, because they are seen as being anti-Gillard government. If we had statutory intervention, if we had the right of the government of the day to potentially license journalists or regulate journalists in some way or regulate the media, then that would be a huge attack on freedom of speech.

It is a difficult issue and I am far from convinced that comprehensive regulation is warranted. If there is to be some form of regulation involving an oversight body it should be judicial or quasi judicial and independent.  Freedom of speech is a fundamental value (which is not threatened by a statutory right of privacy despite the arguments from the naysayers).

Damien Carrick: Is that really what’s been contemplated, though? I thought it was, you know, government funding of an organisation which would be set up under statute which would be guaranteed independence?

That is the critical issue.

Peter Bartlett: Guaranteed independence? How can you guarantee independence if that regulatory body is totally funded by government?

It is a fair point but courts are funded by government.  Court fees do not even come close to allow the courts to be self supporting.  The issue is independence.  That involves statutory guarantees and the right personnel.  That is not to say I don’t share Bartlett’s concerns.  Any heavy handed oversight should be rejected.

Who appoints the regulators? The government appoints them. Are we going to see, during a Labor government, people sympathetic to the Labor government appointed to that regulator? During a Liberal National Party government, more conservative people appointed to the regulator? That is not the type of regulation of the media that we want and need.

These are quite legitmate issues.

Damien Carrick: And you see that as a real…a real danger, with the Finkelstein proposals?

Peter Bartlett: It would be far too tempting for a government who is totally opposed to the views expressed by an organ of the media, to keep away from it.

Damien Carrick: Peter Bartlett, one of Australia’s leading media lawyers. He provides round-the-clock advice to The Age newspaper, and before him, barrister Michael Rivette, who has a great deal of experience in media and privacy law. Now, earlier this year I spent three months in the UK at the Reuters Institute for the Study of Journalism at Oxford University exploring issues around privacy and regulation. My paper has just been published, and there’s a link to it at the program website, at abc.net.au/radionational/lawreport. That’s all we have time for today, thanks to producer James Pattison, and also to audio engineer this week Carey Dell. I’m Damien Carrick, talk to you next week with more law.

Damien Carrick also undertook a useful study regarding privacy and regulation in the UK environment.  The introduction provides:

In his study, ‘Privacy, Regulation and the Public Interest: The UK experience and the lessons it might hold for Australia’,  Damien interviews ten leading UK media lawyers, journalists and academics on the best way of addressing breaches of privacy by the media – through the courts or via the regulatory framework.

Everyone agrees on the need to strike the right balance between the right to privacy and the right to freedom of expression.  But as Damien points out, the differences of opinion often lie with defining “the public interest”.  And as regards regulatory reform, he summarises the debate around whether there should be self-regulation, statutory regulation or independent regulation with a statutory underpinning.  

Damien concludes that both the UK and Australia could gain from observing what is taking place in the other country:  Australia could draw on ideas about how to create a voluntary scheme, while the UK could start to consider a blue sky approach to the challenges of convergence.

He also is attracted to the ideas of RISJ author Lara Fielden who has put forward a three tier regulatory model.  Her model recognises that the traditional divisions between media platforms are collapsing and in the future newspapers and TV stations will more and more resemble each other. It also recognises that compelling participation is an increasingly difficult proposition.

A better approach is to allow news organisations to choose their own level and form of regulation and educate the public to distinguish between these different forms. Each of the three tiers of regulation will be accompanied by a different set of legal and regulatory obligations.

Damien recognises that

the model presupposes that the public will be able to distinguish between the three tiers. This is a big assumption.

But he argues that what is interesting about this model is ‘that it lets go of control. It acknowledges a world of uncertainties and fluidity.’

Carrick’s report is found here.  Chapter 2 is an interesting consideration of the development of the case law in the UK.

It was a very interesting program. Certainly a good introduction to the issue.

 

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