The latest journalistic offering against a statory right to privacy

January 27, 2013 |

David Penberthy in Censorious laws treat us all like children is the latest in a long line of members of the Fourth Estate sounding the alarm about a statutory right to privacy.  That perhaps is a tad unfair.  The article deals with a range of other “threats” to the reportage, more real than the illusory danger of a statutory right of privacy.  To wit the consolidation of the anti discrimination Act. Vilification legislation is, and has always been, bad public policy, poorly drafted and unevenly enforced.  It achieves little beyond chilling speech. It does not change malefactors’ views.  It puts the court’s in the invidious of having to assess what is objectionable speech and what is legitimate public debate, what is orthodoxy and whether dissent is appropriately stated.  The legislation should be overhauled at minimum or preferably repealed.

A statutory right to privacy should not chill speech, particularly commentary, if drafted properly.  In any event, notwithstanding the commentary, it does not exist solely in the space of reportage nor is its focus or underlying rationale to limiting what can be covered or how it may be covered.

The article provides (with commentary):

It was one of the most confronting Australian news images of 2012. A little boy holding a placard reading “Behead all those who insult the Prophet”, standing among the hysterical crowd at the Sydney protests against an obscure art-house film ridiculing Mohammed.

The discussion inspired by that image was impassioned. The child and, particularly, his parents were held up as evidence that something was seriously wrong within sections of our multicultural society.

The heated nature of the discussion was not surprising at all, even if some of it was unpleasantly over-the-top. But in a free society such as ours it was still a conversation worth having.

You can understand that the family in question felt distressed. Yet it was their own abysmal actions, in using their kid as the tiny front man for the most sickening political demand, which turned them and their little boy into public figures, and valid subjects for public debate. If they didn’t want to face this kind of distress they should probably have ditched their stupid sign and stayed home and let their son play with his Lego, rather than parade him about in Martin Place demanding beheadings.

I write about this issue not to dredge it up again but to consider how it would have been reported and how it could have been discussed under the changes surrounding media conduct and public conversation being considered by the Gillard Government. From what has been revealed by the Government so far, and from what the Communications Minister Stephen Conroy is also believed to have up his sleeve, it is doubtful that a story such as this one could have been reported at all.

On privacy grounds I doubt Mr Penberthy is correct.  Privacy laws in the UK (the closest equivalent in the current debate) do not prohibit coverage of demonstrations including those involving children.  The application of privacy law in the UK relating to children has been specific and limited.

In addition, the discussion around it would have been massively curtailed, if not shut down for fear of litigation, by the prospect that people could have been offended by its tone or content.

Vilification legislation throws a far heavier blanket over debate.  It does chill speech and commentary.  It should be pared back if not abolished.  The right to offend is often a necessary feature of political and social debate.  And it should remain so.

It is worth noting the comments of the Prime Minister this week about the proposed consolidation of the anti-discrimination act into one new piece of legislation, namely that no final decision has been made, and that she welcomes this kind of discussion of the issue. The discussion around it has been largely negative, with many people on both the conservative and progressive side of politics, members of the mainstream and independent media, all lining up to say that the laws will put a brake on freedom in letting people take legal action for merely being offended by something.

And that is wrong and should be challenged.

The other thing which is happening behind the scenes is that Communications Minister Stephen Conroy is considering a push for a tort of privacy.

Perhaps but such legislation is within the bailiwick of the Attorney General under the current administrative arrangements.

Such a tort – which basically means people will have redress in the law for having their privacy breached – has been strongly supported by many in the legal profession for a long time.

Boiled down to its most basic essence this is a fair, if vastly oversimplified, description of the starting point for the operation of a statutory tort of privacy.  It does have strong support from within the legal profession because it is an area of law where the need for protection is great but the protections are, at best, patchy and the ability to enforce weak.

Should Conroy go down that path,

Again, not sure it is Conroy.  He may be supportive of it but that does not mean it is his bill.  In the recent past the government discussion paper has been organised by the Attorney General’s Department.

it’s likely that whatever he draws up would be similar to the Australian Law Reform Commission’s proposed tort which covered questionable forms of behaviour such as the use of secret cameras and also included blanket bans on the broadcast or publishing of images of minors without the express permission of their parents.

The Australian Law Reform Commission recommended a statutory right of privacy in its 2008 Report, Your right to know.  The relevant recommends provide:

Recommendation 74–1

Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a nonexhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:
(a) there has been an interference with an individual’s home or family life;
(b) an individual has been subjected to unauthorised surveillance;
(c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or
(d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2

Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:
(a) there is a reasonable expectation of privacy; and
(b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.
In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Recommendation 74–3

Federal legislation should provide that an action
for a serious invasion of privacy:
(a) may only be brought by natural persons;
(b) is actionable without proof of damage; and
(c) is restricted to intentional or reckless acts on the part of the respondent.

Recommendation 74–4

The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the:
(a) act or conduct was incidental to the exercise of a lawful right of defence of person or property;
(b) act or conduct was required or authorised by or under law; or
(c) publication of the information was, under the law of defamation, privileged.

Recommendation 74–5

To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following:
(a) damages, including aggravated damages, but not exemplary damages;
(b) an account of profits;
(c) an injunction;
(d) an order requiring the respondent to apologise to the claimant;
(e) a correction order;
(f) an order for the delivery up and destruction of material; and
(g) a declaration.

Recommendation 74–6

Federal legislation should provide that any action at common law for invasion of a person’s privacy should be abolished on enactment of these provisions.

Recommendation 74–7

The Office of the Privacy Commissioner should provide information to the public concerning the recommended statutory cause of action for a serious invasion of privacy.

The above recommendations do not preclude coverage of children.  There is a separate chapter in the report dealing with children but the tort the ALRC proposes is drawn in the broad and without specific categories of individuals who will be afforded additional coverage.  Penberthy is overreaching.  In any event until a Bill is produced jumping at shadows is not a useful exercise. The above recommendations, if enacted, would not be a code but rather involve the similar balancing act that occurs in the UK in misuse of private information cases.  The media are not always on the losing end of those arguments are not always involved in such actions either.

On the face of it a lot of people would probably say fair enough to these proposals.

I would not be one of them.  A blanket exemption or unequivocal protection of a category of person would be poor policy.

Where it starts to get interesting and troubling is when you think about specific cases to see how the law applies. If you think about the story of the Islamic protests and the kid with the sign it is obvious what it would mean. It would mean the story doesn’t appear, or at least not with an image of the child or with any identification of his parents.

On privacy grounds there is  good reason to think that a demonstrator has no reasonable expectation of privacy.  Holding a placard up above one’s head in a public demonstration in Martin Place is about as public as one could expect.  Whether that placard waving demonstrator is elderly, middle aged, a youth or a child he would be testing the bounds of logic and credulity to argue he had an expectation of privacy.

And even if the story did run, albeit shorn of any human element such as a face or a name, you would have to tread very carefully if you wanted to discuss it publicly, lest some of the people who were advocating beheadings or throwing haymakers at the coppers had their precious feelings hurt. 

Perhaps (or perhaps not) but this is not a privacy issue.

There are already examples in this country of laws which sound noble in their design and are actually perversely counter-productive in their application. In NSW it is illegal for the media to identify any child who has died as a result of a crime, once charges have been laid against the alleged offender. It sounds good in theory but what it can often mean is that a child who died as a result of scandalous circumstances, possibly involving government failure, will be airbrushed out of the news, dehumanised, that they will basically just disappear.

And that warrants proper consideration and amendment.  But it does not impact on how a privacy tort would necessarily, or even come close to operating.

One of the most harrowing stories I can remember was the shocking murder of two-year-old Dean Shillingsworth, a little Koori kid on the fringes of western Sydney who was killed, put in a suitcase and thrown into a lake in a park at a public housing estate. The image of him in his Thomas the Tank Engine pyjamas with his bright eyes and cheeky smile was absolutely heart-breaking. Not only was this a story of shocking social dysfunction, it was also a story which went to the heart of case management by the Department of Community Services. It was also a human story. The media quite rightly ran the image of Dean for days, and the moment murder charges were laid he just vanished from our pages and from the TV screens.

It is much easier for governments to manage a crisis such as this, much easier for negligent parents to shield themselves from deserved shaming, when it involves someone called Toddler X whom the public has never and will never see.

All good arguments about reportage.  But it does not follow a privacy tort would have this effect absent existing NSW laws.  In fact, as a natural person can only bring an action it would not apply.  Put another way, the deceased do not have privacy rights (or rights in defamation).

Those who regard the media as morally bankrupt should reflect on the logical fact that the media is in the business of not only reporting news but also making money.

The media is not morally bankrupt.  Some reporters are, some are unethical, some don’t think, some don’t care.  Most are good operators who are interested in properly researching and running a piece in whatever form they operate.

I cannot think of a better way to destroy your product than to offend your readers by gratuitously and cruelly breaching a child’s privacy.

Actually it depends on the product, the target audience and the pressures on the media outlet.  Some shows on television don’t care, most do.  Some outlets are driven by a demographic who would not take offence at gratuitous acts or are prepared to take the hit, acquire the notoriety and deal with the consequences (along with the spike in ratings or circulation). This argument is the weakest in the article; a variation on the media “..knows best” and “wouldn’t act against its best interest”. And yet it does from time to time, just as businesses, government, public servants, police officers and any number of others act appallingly and breach an individuals rights in a manner which seems incomprehensible after the fact. It happens and a citizen should have redress. The UK media gratuitously and cruelly breach Milly Dowler’s privacy but the culture had by then (and beyond) descended to a point where expediency and toxic competition meant that some papers didn’t see their actions as destroying their own product.

You would deserve to go out of business.

The News of the World did go out of business for privacy breaches but others did not and would not for breaches of privacy in the UK.  Nor would they in Australia.  But infringements should be called to account.  While the the Australian Press is far removed from the tawdry practices of the UK some outlets are prepared to intrude into someone’s privacy where the newsworthiness of the story is, at best, marginal.  A Current Affair and Today Tonight try to reach across the pond and give their UK bretheren a hug in solidarity from time to time with some of their foot in the door antics.

The cases I mentioned above do not fit that category. They were stories which needed to be told. Our coverage and your conversations should not be stymied by ham-fisted legislation which accidentally or deliberately shuts all of that down.

On the privacy front I doubt, based on the ALRC’s recommendation that the stories would be stymied by the existence of a statutory right of privacy.

What Penberthy ignores in the debate is that privacy is not a “media thing”.  Privacy is not something that is viewed through the prism of a cameraman’s lens or defined by what a journalist can write.  It relates to a question of autonomy and the right of someone to be let alone.  Natural persons may, and do, interfere with the privacy of others, be they neighbours, colleagues or just those who want to interfere with others privacy.  Some businesses and government have a penchant for straying into intrusion and should be held to account.  The current common law protections are cumbersome and generally ineffective.

And the debate continues…. So it should.

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