privacy |

When Should Privacy Be Legally Protected?

November 4, 2011

There’s been a lot of talk in recent weeks about the need for a statutory privacy tort. This comes in the wake of the Murdoch press’s phone hacking scandal. Even before then there were the reports of the challenges that social media sites such as Facebook and Twitter and their millions of users offer to the privacy of users, their ‘friends’ and others discussed. The apparent trends towards untrammelled publicity suggest that not only sporting figures and other celebrities may find themselves constantly on show to their voracious audience, despite their efforts to prevent this happening. Now we are seeing a multitude of ordinary and sometimes quite vulnerable people also suffering inconvenience and distress and even deeper harms from the prying eyes and gossipy comments of others. Indeed given that ordinary people and celebrities are often not that different it is easy for these two groups to overlap – I would say Lara Bingle is a good example here. So perhaps it is not surprising that the public pressure for more effective legal privacy protection might be increasing.

To demonstrate its sincerity in tackling the possible problem of privacy the government has recently published an Issues Paper asking the Australian people for advice on the need for a new statutory tort. In fact, this represents just one more stage in a constant public consultation program on the benefits (or not) of a statutory cause of action in privacy. In 2008 the Australian Law Reform Commission made recommendations for a statutory privacy tort, after a substantial review including a nation-wide program of consultation. Following that report there were further reports from the New South Wales Law Reform Commission (in which I was involved as a member of an expert advisory panel) and the Victorian Law Reform Commission, both also coming at the end of a program of public consultation. And both also recommended statutory causes of action for invasions of privacy (although in each case these were slightly differently framed). So it seems that there is considerable public support for a statutory privacy tort. But would this bring all the benefits proclaimed?

My question here is not about the possible benefits of a new statutory action. It is true that our existing law already provides a significant degree of protection to privacy, through the actions such as breach of confidence, defamation, passing off, harassment, and intentional infliction of emotional distress. Breach of confidence especially functions as a privacy doctrine, being based on an idea of trust and confidence that information that is not a matter of ‘public knowledge’ will be treated according to the wishes of the party it concerns. (It would have been the obvious action for the Australian Defence Force Academy cadet who recently discovered that images of her engaging in sex had been secretly streamed to her partner’s friends.) But a statutory action for invasion of privacy would provide greater transparency than an action which is not framed around privacy – in the same way that the statutory tort of misleading or deceptive conduct is more transparent than the traditional common law misrepresentation and passing off actions. It could also usefully provide more avenues for enforcement than the courts, utilising the federal and state information and privacy commissions. And it would hopefully be more easily updated than the slow-moving incrementally-adapting common law to accommodate new situations and circumstances.

And the benefits would not only have to be on the side of privacy claimants. A statutory public interest defence, as recommended for instance by the Victorian Law Reform Commission, would provides a vehicle for interests in privacy and publicity to be balanced on a case by case basis – providing a clear basis for protecting free speech while not conceding automatic and absolute priority when it comes to speech which involves or results from an invasion of other’s privacy. There are many cases where a balance between privacy and free speech may seem relatively straightforward. The leaked shower photo of Lara Bingle is a good example. Here the free speech argument for publication is weak to non-existent compared to Bingle’s claim for privacy. Or, to take another real-life example (from the 2006 case of Australian Broadcasting Corporation v O’Neill which went to the High Court as a defamation case), the public interest in revelation on the ABC of a convicted child killer’s confession to an undercover journalist (and former police officer) that he had killed other children seems very strong even in the face of his claim for protection of privacy. For the revelation not only raises questions of public safety but also of the operation of the justice system.

Of course not every case would be so straightforward. For instance, there is the controversial English case of the blogger ‘NightJack’ who became famous for his insider’s account on the life of a serving police officer and then found that The Times proposed to publish his true identity having discovered this via a journalist, using ‘mainly’ internet sources (the other sources were less clear). The blogger sought an injunction on the basis that the information as to his identity was ‘private and confidential’, that he gone to lengths to secure his identity, and that those who knew he was NightJack also knew this was private and confidential – adding, moreover, that there was no clear public interest that justified publication in The Times. The judge refused an injunction on the grounds that, first, blogging is a ‘public activity’ and, second, the public interest supported public exposure of the blogger’s violation of the police code of practice. It may be wondered whether blogging should be deemed to be such a ‘public activity’. But I am sympathetic to the argument that on balance the public interest supported the publication. In any event, the blogger (Richard Horton) seemed to accept the finding. He wrote a follow-up article of his own in The Times where he talked about his motivations and at the same time expressed loyalty to the police force (which had for its part had limited its penalty to a warning). Needless to say, he showed less sympathy for idea of the inherently public nature of blogging. Why would he?

But the question whether a statutory privacy tort would bring all the benefits that have been claimed by its supporters still has to be asked. The question comes down to how the tort would be framed as a matter of statutory language. One question currently being considered is whether a privacy claimant should have to show that the violation of privacy would be ‘highly offensive to a reasonable person of ordinary sensibilities’, as recommended by the Australian Law Reform Commission. The Victorian Law Reform Commission made a similar recommendation. But it was not the recommendation of the New South Wales Law Reform Commission. And there are several (including myself) who have argued that a high offensiveness standard would be an onerous and unfair standard for a privacy claimant. It would effectively carve out a sphere of absolute protection for speech and other conduct which invades a person’s privacy according to that person’s own lights, not on the basis of any public interest in knowing the information but simply on the basis that a ‘reasonable person of ordinary sensibilities’ would not be highly offended. What justifies the ordinary/reasonable person’s involvement in filtering individual privacy claims in this way?

Certainly, this standard is not historically part of our law. For instance, our action for breach of confidence is traditionally premised on allowing individuals to decide how seriously concerned they are about the public discussion of their affairs – that was noted by Mason J in the 1980 defence papers case Commonwealth v John Fairfax & Sons (pointing out that the government should be held to a higher standard). Although Gleeson CJ hinted that a high offensiveness standard might be a useful adjunct to the breach of confidence action when used to protect privacy in the 2001 case of Australian Broadcasting Corporation v Lenah Game Meats, operating as a ‘useful practical test’ in scenarios where information was not ‘necessarily private’, there was no suggestion there that it should be erected into a threshold that might deny protection to otherwise private information. Nor does it come from the United Kingdom’s statutory provision for privacy in the Human Rights Act 1998 (implementing the Article 8 right to private life in the European Convention on Human Rights). And the UK courts for their part have rather preferred as the starting point for assessing a privacy claim a ‘reasonable expectation of privacy’, treating this as a matter to be judged from the perspective of the claimant, not the audience which is seen to have its own vested interest in publication (given its role as consumer). In fact, the highly offensive standard comes from the US privacy torts which are notoriously difficult to satisfy. In practice, not only does this threshold carve out a protected zone of privacy-intrusive free speech. It takes the majority’s will as the proper standard of what a privacy expectation should be. While this might make sense in a jurisdiction which has erected freedom of speech to an overriding constitutional imperative, in jurisdictions (such as ours) where freedom of speech is traditionally treated in a more balanced and fact-specific way it would be a curious development in our law. Why should we import this US standard into our law, especially when the American attitude to privacy is historically so different from our own?

Perhaps the language of ‘highly offensive’ to an ordinary/reasonable person could be read differently in an Australian context than an American one. I would hope so. In the US, courts refused to uphold a privacy claim brought by a chronically private former child protégé, now a recluse, who was exposed in an article in The New Yorker using information obtained by an undercover journalist masquerading as a friend of the claimant and which was ‘merciless in its dissection of intimate details of its subject’s personal life’ (in the 1940 case of Sidis v F-R Publishing Corporation). They also gave no credence to the privacy claim of a Hasidic Jew of the Klausenberg sect whose religion prohibited the use of ‘graven images’ after he was secretly photographed by a street photographer hiding behind a scaffolding in Times Square New York with the photograph later exhibited and sold as an artwork (in the 2007 case of Nussenzweig v diCorcia). And they had no sympathy for the privacy claim of a Berkeley student Cynthia Moreno who having posted a critical comment about life in her former home town on her ‘Cynthia’ MySpace page and taken them down six days later found her former headmaster had arranged its publication in the local newspaper with her full name attached (in the 2009 case of Moreno v Hanford Sentinel, Inc). A subsequent claim for intentional infliction of emotional distress also failed notwithstanding that after the forced publicity she suffered threats and her family was forced to close its business and leave town.

The American media lawyer David Anderson once wrote that the fact that Americans (in general) do not value privacy highly and rather want to know everything about their neighbours goes some way to explain what he called ‘the failure of American privacy law’ (in Markesinis (ed), Protecting Privacy, 1999). If there is an Australian culture of privacy I would say it is more sympathetic to individual claims of privacy as a counterweight to free speech, in keeping with nineteenth century Millian ideas of individual liberty and utilitarian balances which are traditionally embedded in our common law. Perhaps we are changing in our expectations of privacy, but for my part the American approach is not a good model for where we might want to go with privacy protection. If that is where a statutory cause of action would take us, I would rather stick with the incrementally-developing common law.

Megan Richardson is a professor at the Melbourne Law School

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Posted by pseudogold

Phone hacking and privacy torts

July 29, 2011

By Megan Richardson

Who before last week would have predicted there would be serious talk of a statutory privacy tort in Australia with politicians coming out openly in support of it? But then who would have predicted a phone hacking scandal engulfing the Murdoch press?

The Australian’s senior legal writer Chris Merritt last weekend dismissed the connection saying we have criminal law to deal with phone hacking plus defamation and other laws to protect individuals, and questioning the need for a privacy tort – especially one as draconian in its treatment of the Australian media as that recommended by the Australian Law Reform Commission. What this discussion sidesteps, as much of the discussion I have read to date in the press, is that we already have common law protection of privacy fashioned through case law, which does or should constrain the media.

A problem, I think, is that our main source of common law protection goes by the antiquated name of ‘breach of confidence’. This gives the false impression of a confider and confidant. In reality the compass is far broader – and the doctrine is really one of misuse of confidential information, including information of a private character. In the defence papers case Commonwealth v John Fairfax Mason J referred to breach of confidence as a doctrine restraining ‘the publication of confidential information improperly or surreptitiously obtained’, citing Swinfen Eady LJ in Lord Ashburton v Pape (1913) 2 Ch 469. More recently, in the possum abattoir case Australian Broadcasting Corporation v Lenah Game Meats, Gleeson CJ quoted Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 as saying:

If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.

Gleeson CJ agreed with that proposition, adding that to adapt it to the Australian context account should also be taken of the freedom of political communication which the High Court has held implicit in the democratic principles of the Australian Constitution. This suggests that the defence is particularly stringent where that implied freedom applies.

Lenah itself was a surreptitious filming case. Animal rights activists secretly entered the game meat abattoir’s property to film its possum slaughter processes then handed the film (through an intermediary) to the ABC who proposed to show on its 7.30 Report. Lenah sought an interlocutory injunction to stop this but did not claim breach of confidence, conceding rather that the information as to its animal slaughter methods was not confidential. Instead it argued the High Court should recognise a new tort of privacy to cover their case. Gleeson CJ said that breach of confidence would have been adequate to cover the case if ‘the activities filmed were private’. Even if so, the Chief Justice’s references to the public interest defence and constitutional freedom of communication suggests the ABC might have had a good defence. As Kirby J pointed out in his judgment, this was a government licensed abattoir and the public is entitled to know that the government is concerned to ensure that animals at the abattoir are being treated humanely (so far as an abattoir designed to kill animals can do so). The Australian government’s recent action over live meats exports shows it accepts this responsibility, and the ABC’s role in uncovering the problems there is worth noting and preserving.

We only need to imagine a slightly different fact situation to see Lenah as a strong authority on breach of confidence’s protection of privacy. Although some judges in the High Court questioned whether a corporation concerned about its public reputation was the best privacy claimant (Gummow and Hayne JJ especially), it was clear that the situation would have been different if the claimant had been an individual filmed or photographed while engaged in a private activity. For instance, Gleeson CJ said, ‘a film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence’ – as would ‘information relating to health, personal relationships, or finances’. If the information was surreptitiously or otherwise improperly obtained, there is a good argument that its publication could be restrained or a remedy granted after the fact on the basis of breach of confidence, unless a public interest could be shown to justify the publication.

These are not just hypothetical scenarios that could never arise in Australia. In fact, the prospect of an improperly obtained video recording of a man in his underpants being aired on Australian television was very real in Donnelly v Amalgamated Television Services, where an interlocutory injunction was obtained (although, as often occurs in cases where other grounds are available, breach of confidence as such was not relied on). Lara Bingle’s objection to publication of the infamous shower picture in Woman’s Day is one example and in my view she had a potential claim that might have succeeded if she had chosen to pursue her action. Certainly, there are English cases where confidentiality claims against the media have succeeded involving weaker arguments of privacy and stronger arguments of free speech than were apparent in the Bingle scenario.

That many of those English cases have arisen in the wake of the Human Rights Act 1998 makes their authority in the Australian context more debatable. The Act brings into English law the European Convention on Human Rights, including the right to privacy in Article 8 along with the right to free speech in Article 10, and gives English courts the responsibility to develop its law in accordance with those rights. Perhaps it may be argued that the absence of an equivalent Bill of Rights at the Australian level means that privacy is not, or need not be, so highly valued here. But can this be said of private phone hacking? I would think many Australians would consider this a breach of their privacy.

And it would likely be a breach of confidence as well. Well before the Human Rights Act, the English case of Francome v Mirror Group Newspapers Ltd (1984) 2 ALL ER 408 concerned an illegal ‘bug’ placed on the jockey John Francome’s private telephone line. The tapes had been offered for sale to the Daily Mirror whose reporters approached Francome to confirm their authenticity. Francome and his wife promptly brought an action in breach of confidence seeking an interlocutory injunction to stop its publication of the transcripts, or extracts. The defendants denied liability and argued, alternatively, that publication was justified in the public interest as exposing Francome’s breaches of racing rules. Thus, they said, the balance of convenience lay in their favour, so the injunction should not be granted. However, the Court of Appeal held that the unlawful telephone tap was improper obtaining, the newspaper which had notice of the wrongdoing would also be liable as a third party for breach of confidence if it went ahead with its publication, and the public interest did not justify this since the tapes could have been given to the police or jockey club to deal with through official channels. Surely this case shows that in Australia as well as the United Kingdom unlawful telephone tapping by the media would be a prima facie breach of confidence, and that given the unlawfulness of the conduct the burden on the media to show the public interest supports its action is very high – although a court might allow an argument that there is good ground to suspect misconduct and the police could not be left to handle the investigation.

But to revert to my earlier point, the significance of breach of confidence in cases such as Francome is not widely known. In answer, then, to the question of whether there would be any advantage in a new statutory tort of privacy, I suggest transparency is one. If even The Australian’s senior legal reporter does not refer to breach of confidence what is the rest of Australia’s population to make of their legal rights in the (hopefully unlikely) scenario they find their telephones tapped for media reporting on some current story?

That said, there may be better ways to acknowledge the importance of freedom of speech and the media than in the Australian Law Reform Commission’s proposed statutory tort (where it is a matter to be ‘taken into account’ in a court’s determination of invasion of privacy). I was part of an expert group of the New South Wales Law Reform Commission whose proposed statutory cause of action for invasion of privacy tries to give more explicit account to freedom of speech and the media. The Victorian Law Reform Commission in its recent proposal for a cause of action for misuse of private information has gone further still, providing a full public interest defence. To me that seems the best approach to date. As Michael Kirby was quoted in an article in last weekend’s Australian, privacy may be a human right but so equally is freedom of speech and the media. Rather than giving either automatic precedence both should be acknowledged in any privacy cause of action and if need be they should be ‘reconciled’ in cases.

So, in the end, the judge’s central role in deciding privacy cases seems inescapable. In other words, we rely on the media to report freely but in cases where media seems too intrusive of individual privacy we should trust judges to exercise appropriate oversight.

Megan Richardson is a professor at the Melbourne Law School

An edited version of this piece has featured at theconversation.edu.au

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Posted by clarissaterry

WikiLeaks is a force for good?

June 30, 2011

I was recently invited to attend the Intelligence Squared debate asking whether ‘WikiLeaks was a force for good?’ and contribute a small article about the debate for the organiser’s newsletter (the St James Ethics Centre). The article was to be a legal companion to the article contemplating the ethical aspects of WikiLeaks by Dr Simon Longstaff, Executive Director of the St James Ethics Centre and Chair of the Intelligence Squared Australia debates. At the debate, this polemical issue provoked a tempestuous dispute by extremely gifted speakers including: Dr Suelette Dreyfus (author of ‘Underground’), Kristinn Hrafnsson (current spokesman for WikiLeaks), and Professor Stuart Rees (Emeritus Professor at Sydney University and Director of Sydney Peace Foundation) for the positive; and Gareth Evans (former Foreign Minister), Tom Switzer (political writer, editor, adviser and lecturer), and Dr Michael Fullilove (Director of the Global Issues Program at the Lowy Institute) for the negative. Interestingly, the poll results from before and after the debate suggest that while those believing WikiLeaks is a force for good remained undeterred, those undecided before the debate were markedly influenced against the proposition by the end. The precise results, as well as the audio of the debate are available from the IQ² website. – Jake Goldenfein

WikiLeaks is a Force for Good

By Dr Simon Longstaff

Speaking at the 25^th Asia Pacific Roundtable in Kuala Lumpur in June 2011 Rowan Callick (The Australian) quoted Australia’s Ambassador to the United States, Kim Beazley who stated “[WikiLeaks is] like American foreign policy being neutron bombed” – the implication being that while the infrastructure of the US State Department survives, the people within the edifice have been badly damaged. Beazley’s analogy is, at the very least, striking. It is also at the more extreme end of the rhetorical scale employed by WikiLeaks’ critics. The core of Kim Beazley’s argument, however, is shared by many members of the diplomatic community. Their chief complaint is that WikiLeaks has undermined a fundamental precursor for the conduct of diplomacy – the maintenance of confidentiality of communications. The argument goes that, without a guarantee of confidentiality, the otherwise essential exchange of information will be curtailed for fear of exposure. Given that effective diplomacy can prevent or resolve conflicts capable of destroying the lives of innocent people, it is further posited that WikiLeaks is a significant source of harm – and not just a minor inconvenience.

It should be noted that this argument does not rely on the claim that WikiLeaks’ release of cables caused serious harm to those named in the published cables. Appearing before Congress, US Secretary of Defense. Robert Gates, testified that no damage had been done to active operations and that no American life had been put at risk by the activities of WikiLeaks. The fate of those who provided information to US officials, however, may not have been so benign – especially if operating under oppressive regimes in countries where even a modest degree of candour can have dire consequences for the individuals concerned.

At face value the criticism mounted by Beazley and those of like mind would seem to have merit. After all, who would deny that effective diplomacy is an important public good. It is less clear, however, that WikiLeaks acted in a manner to undermine the preconditions for diplomacy. For example, although diplomats require some matters to be kept secret, it does not follow that all matters they claim require secrecy should be accorded this same condition. The scope of the Official Secrets Act in Britain was once so expansive that it included the House of Commons’ dining room menu. No reasonable person would assume secrecy requirements for such details. In fact, much included in the trove of diplomatic cables released by WikiLeaks was mundane. Indeed, the level of American security accorded to the cables was relatively low – with access granted to several million people connected to the Secret Internet Protocol Router Network SIPRNet used to share information in the ‘war on terror’. It is unlikely the United States government would have granted such extensive access if it had considered the cables contained highly sensitive information.

The other point worth noting about the contentious releases is that WikiLeaks subjected itself to external review by agreeing that the editors of mainstream news outlets should vet the material in order to remove any information judged to be genuinely sensitive, This is an important point. In the case of the US cables, at least, WikiLeaks was prepared to accept the judgement of editors who society routinely trusts to be prudent and responsible when determining what should or should not be published. The editors involved in handling the sensitive diplomatic material have been explicit about their determination to exclude material that would have caused risk, rather than mere embarrassment, to others.

As most commentators have noted, the debate about WikiLeaks is about much more than the particular case of how the US diplomatic cables were handled. The larger question concerns the extent to which society should have access to public information that is relevant to its interests. There is a significant difference, however, between what is in the public interest and what the public happens to be interested in – a distinction not always applied by the media. Governments often claim to be guardians of the public interest. They claim a corresponding right to decide what the public should know – and when we should know it. It is also clear, however, that governments will often make decisions in line with personal or political interests – interests that are not always aligned with those of their citizens. Add to this the kind of caution that would include a dining room menu under an official secrets act and it soon becomes evident that it would be unwise to rely exclusively on the judgement of governments.

The vast majority of people recognise the importance of maintaining some measure of secrecy in their own lives. They also know governments must keep some matters secret, for example for reasons of national security. What WikiLeaks has prompted is a public discussion about where the balance should lie. The June 2011 Intelligence Squared debate which is now available at iq2oz.com pondered the proposition WikiLeaks is a force for good. Speakers for: Dr Suelette Dreyfus, Kristinn Hrafnsson, current spokesperson for WikiLeaks, Professor Stuart Rees. Speakers against: Gareth Evans, Dr Michael Fullilove, Tom Switzer.

Dr Simon Longstaff is Executive Director of St James Ethics Centre and Chair of Intelligence Squared Australia debates.

This article will also be published in the St James Ethics Centre Newsletter and at thepunch.com

WikiLeaks: legal status and political choices

By Jake Goldenfein

A survey of whether or not WikiLeaks is a force for good does not necessarily consider the legality of its actions. At this stage there is only indirect legal action against WikiLeaks. For example, many consider the accusations against Assange to be politically directed at the WikiLeaks organisation, and the severe incarceration of Bradley Manning, the source of a great deal of WikiLeaks material, surely has a deterrent motivation targeting potential leakers. Beyond that, neither WikiLeaks nor its activities are outlawed. A Grand Jury in the US is attempting to assemble a case against WikiLeaks for crimes under the Espionage Act, Computer Fraud and Abuse Act, and for conspiracy, however most commentators consider constitutional free speech protections to be a significant impediment to prosecution. But WikiLeaks legal status also reflects its ‘organisational status.’ That is to say, whether WikiLeaks is considered a journalistic organisation, a publishing organisation, or simply a source, affects which laws are relevant. The laws applicable to each category vary, and despite often being treated by mainstream media as simply a source of leaks, WikiLeaks is not being prosecuted as such, meaning it need only comply with laws relevant for journalists or publishers. American precedent such as the famous Pentagon Papers case suggests that the messy balance between the administration’s need for secrecy and the public’s right and need to know should enable the administration to function, subject to occasional disclosures to keep it honest. ‘The rare exceptions would require a combination of high likelihood, magnitude, and immediacy of harm to justify suppression,’ meaning there is a very high threshold to WikiLeaks prosecution under that doctrine.

It is difficult to assess whether WikiLeaks legal situation would be different if pursued under Australian law considering we have no express constitutional right to free speech (though we do have an implied right of political communication), and our whistle-blowing laws do not apply to the media at large. Commonwealth v John Fairfax and Sons (1980) 147 CLR 39 (‘Defence Papers Case’) and Attorney-General v Heinemann Publishers (1987) 8 NSWLR 341; (1988) 165 CLR 30 (‘Spycatcher’) are potentially relevant Australian cases indicating that under our law WikiLeaks may be exposed to a breach of confidence action, and the Fairfax case points out that copyright may also be relied upon where documents are copied. But prospects of success are not guaranteed and there are some important limitations and qualifications on liability (for instance the defence of fair dealing for purposes of news reporting vis-à-vis copyright, the need to demonstrate Australian public interests vis-à-vis breach of confidence). Of course assessments here will be very fact specific and we do not necessarily know all the relevant facts at this stage. Katy Barnett wrote a nice piece on ‘Spycatcher and Wikileaks’ in the January issue of the Fortnightly Review.

Despite its relatively stable legal status, WikiLeaks has certainly still come under attack from institutional actors. And those attacks, generally effected through privately owned intermediaries, expose some of the more concerning aspects of the new media environment in relation to freedom of the press. ‘Extra-legal’ actions (including denial of service cyber-attacks) by companies that control crucial aspects of cyber-infrastructure like Visa, Mastercard, Paypal, EveryDNS, and Amazon, betray a private-public partnership with dangerous censorship implications. Scholars like Yochai Benkler suggest these censorship actions would have been practically impossible under legal and constitutional frameworks.

After the original reaction to the ‘CableGate’ leaks, the rhetorical framing of WikiLeaks shifted away from a major threat to the peaceful world order towards a more realistic suggestion that it undermines the checks, balances and accountability established within traditional media organisations. Indeed, no significant harm (apart from embarrassment) to any diplomatic or military institution has yet been claimed as a consequence of the leaks, suggesting the established media and state institutions reacted primarily from a motivation of anxiety than actual danger. However, that anxiety could be valid, as WikiLeaks may have serious implications for traditional media models as well has profound consequences for nation states and democracy. For example, Professor John Keane from University of Sydney places WikiLeaks at the vanguard of the emerging ‘monitory democracy’ in which democracy has shifted away from simple ‘parliamentary democracy’ towards a form of democracy that includes the permanent scrutiny of power wherever it is exercised.

Therefore, if we take the starting position that WikiLeaks’ publication of materials (often in conjunction with mainstream media) is not clearly illegal (although not clearly legal either), and that the releases seem to have caused no real damage to date at least, then deciding whether or not WikiLeaks is a force for good requires the personal determination of whether we approve of WikiLeaks’ fundament and mission, an inherently political decision. On the whole do we consider the outcomes of WikiLeaks’ actions beneficial?

WikiLeaks’ neutron bomb effect described above by Dr Longstaff, may indeed curtail some exchange of information, however that itself is not determinative of whether the outcomes of WikiLeaks actions are positive or negative. Without doubt governments need secrecy for certain actions (for example effective diplomatic practice), however they also need sufficient trust from the citizenry to maintain that secrecy. Raimond Gaita recently said in a lecture at Melbourne Law School that the current political situation (for example the spin and misinformation) has led to an absence of the conditions of sober judgement and ultimately an incapacity for people to consent to their states’ actions. In that sense WikiLeaks is facilitating the information necessary for consensual governance. Another fundamental effect was described by Glenn Greenwald, who recently wrote that the republican ideal requires that governments are transparent and citizens are private, yet the past decade has seen a wholesale reversal of that ideal. WikiLeaks therefore stands as a subversion of that reversal, a goal that goes beyond embarrassing diplomats or bringing political pressure to end a senseless war. Finally, commentator Guy Rundel has argued WikiLeaks gives whistleblowers a new choice, a chance to avoid the decision between life and truth, with the outcome that pursuing honesty can result in a flourishing of life rather than a suicide mission. Perhaps these outcomes are worth diplomats being slightly more cautious in how they communicate, or perhaps not.

Jake Goldenfein is a PhD student at the Melbourne Law School

This article will also be published in the St James Ethics Centre Newsletter.

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Posted by clarissaterry

Twitter Undoes UK Super Injunctions

June 2, 2011

By Katy Barnett

The law is generally unsuccessful when its ability to prevent the flow of information is pushed to the limit. As I’ve described in an earlier post, the Spycatcher case is a primary example: the more the British government attempted to prevent Peter Wright from publishing his book on MI5, the more publicity they gave it. And the English government met very little sympathy from courts in other jurisdictions when it attempted to suppress Spycatcher in Australia, New Zealand and Hong Kong, even though those jurisdictions were former colonial outposts.

The latest iteration of this particular battle has occurred on Twitter in the UK. A user named @InjunctionSuper set up an account which made a number of allegations against a variety of celebrities. Among other allegations, a prominent footballer (later outed as Manchester United’s Ryan Giggs) was accused of having an affair with a reality television star (an injunction preventing publication of allegations had been awarded by Eady J in CTB v News Group Ltd [2011] EWHC 1232 in April); an actor was said to have used the services of a prostitute named Helen Wood; and it was alleged that Jeremy Clarkson had an injunction preventing the publication or mention of intimate photographs of himself with Jemima Khan.

All these people were said to have had “super injunctions” which prevent not only publication of the details of the allegations and the identity of those concerned, but even prevent people and media outlets from reporting on the existence of the injunction itself. Importantly, to breach the injunction, or to knowingly assist in or permit a breach of the injunction, constitutes contempt of court. People who breach such injunctions may be imprisoned, fined or have their assets seized. In the event, some of the celebrities in question did not have “super injunctions”, but merely anonymity injunctions (which prevent disclosure of confidential information and the identity of one or both of the parties, but do not prevent discussion of their existence).

Ironically, the story broke when Khan responded to the tweet, vehemently denying it:

Only minutes after the claims were published on Sunday, 37-year-old Mrs Khan denied having an affair with Clarkson, saying the allegation was ‘untrue and upsetting’.

‘OMG – Rumour that I have a super injunction preventing publication of “intimate” photos of me and Jeremy Clarkson. NOT TRUE!’ she tweeted.

A minute later she added: ‘I have no super injunction and I had dinner with Jeremy and his wife last night. Twitter, Stop!’

She added: ‘The proof that I haven’t got a super injunction is that the papers have printed my name (and no one else’s – for fear of being sued).’

The socialite received supportive text messages from both Clarkson and his wife Francie after the allegations emerged.

Clarkson used humour to dismiss the claims. In a text to Mrs Khan he said: ‘It’s odd. I’m sure I’d remember if any photos of us existed.’

Khan is correct: the media showed no compunction in mentioning her name, whereas it has been cautious about mentioning other people.

Of course, “super injunctions” and anonymised injunctions are very expensive to obtain, and as media lawyer Mark Stephens commented to The Independent: ‘It’s the beginning of the end. Even a rather thick footballer is going to think twice before handing £100,000 to a greedy lawyer if the greedy lawyer can’t guarantee that it will actually stay secret.” The Daily Mail reported that Giggs had spent £150,000 on lawyers to keep the details of his affair secret, but paradoxically, the greater his efforts to keep the affair secret, the more publicity it received (a clear instance of the ‘Streisand effect‘ at work yet again). As publicist Max Clifford noted in the Mail article linked above, Giggs might have been better off not to resort to the law at all. He is now alleged to have started proceedings against Twitter and “persons unknown”, using the initials ‘CTB’. This rather nice graph at the Guardian shows how mentions of Giggs’ name spiked on Twitter on 20 May once his proceedings against Twitter were announced:

Could those who mention Giggs’ name in the UK be the subject of legal proceedings? It is estimated that about 30,000 Twitter users have breached injunctions by tweeting the identities of various people covered by those injunctions. It has also been reported that the Attorney-General is considering whether to prosecute a journalist for breaching a privacy order involving a different footballer. Meanwhile, a Scots newspaper published details about Giggs, arguing that English law did not extend to Scotland, although — despite the recent success of the SNP in elections — this would seem doubtful.

With impeccable timing, the Master of the Rolls of the UK Court of Appeal, recently released report about “super injunctions”. In summary, the Committee concluded:

The principle of open justice is a fundamental constitutional principle which should only be derogated from where “strictly necessary in order to secure the proper administration of justice”;
There is a difference between super injunctions (which restrain a person from publishing confidential and private information about the claimant where the very existence of the injunction may not be disclosed) and anonymised injunctions (which merely restrain a person from publishing confidential and private information about the claimant where the names of either or both of the parties to the proceedings are not stated);
Since Terry v Persons Unknown [2010] 1 FCR 659, as far as the Committee is aware, only two known super-injunctions have been granted to protect information said to be private or confidential;
‘As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent. Where super-injunctions and anonymised injunctions are granted they should be kept under review by the court’ and they should have clear return dates (pursuant to Terry);
In the recent past, super-injunctions and anonymised injunctions have also sometimes been more widely used than is strictly necessary by UK courts; and
A new procedure should be developed which allows the media to be informed of such injunctions in advance, although there may be times when this is not appropriate.

Interestingly, the Committee did not consider new media or the difficulties associated with controlling it in any detail. One of the key questions is whether such orders can effectively be enforced against entities such as Google and Twitter. Giggs’ case may represent a testing ground in this regard. Another difficulty is that many users are anonymous, making it difficult to find out who they are. Further, it is difficult to restrain publications outside the jurisdiction (as the Spycatcher cases showed in an earlier era).

As was noted in The Independent, the anonymised injunctions which Twitter users breached are only those involving the alleged sexual indiscretions of celebrities. Recently, UK Twitter users have been banned from identifying a brain-damaged woman whose mother wishes to remove life-support, but no one has breached this order. Since 2000, with the enactment of Article 8 of the ECHR (protecting privacy) into UK law, there has been an expanding use of breach of confidence in the UK to restrain breaches of privacy (see Campbell v Mirror Groups Newspapers Ltd and Douglas v Hello! (No. 3)). Perhaps the public are reacting by reasserting the sentiments of Lord Denning in Woodward v Hutchins, a case dealing with unsavoury allegations in the Daily Mirror newspaper about the private life of Tom Jones and other pop stars. Denning LJ said:

If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected … In this case the balance comes down in favour of the truth being told, even if it should involve some breach of confidential information. As there should be ‘truth in advertising’, so there should be truth in publicity. The public should not be misled.

Celebrities seek publicity in the press in exchange for public adulation, but audiences often want a more “true” picture than the highly managed images the celebrities want to project. Perhaps this is why Twitterers are particularly wont to breach injunctions relating to celebrity privacy. Perhaps they dislike hypocrisy (self-presented “family man” turns out to be a serial philanderer etc). Or perhaps it’s simply the Streisand effect writ large – the very fact that the information is prohibited is what makes it attractive and interesting to people.

Ken Parish at Club Troppo has a good summary of the legal and practical issues involved with these kind of cases:

My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint, so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient. Where that is the case I don’t see that the public interest in freedom of speech has much force, irrespective of the degree of fame of the subject of salacious information. The fact that a person is famous does not mean they forfeit all moral claim to personal privacy in my view.

On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating. In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries. Most people lived in villages and knew everyone else’s business anyway. Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.

Like Ken, I feel that we do not have a right to prurient information about celebrities: but whether the law can actually control the dissemination of such information in the present climate is quite another question.

Katy Barnett is a Lecturer at the University of Melbourne Law School

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Too Many Academics? The Experience of Privacy Law Reform

March 4, 2011

By Professor Megan Richardson

Are there too many academics involved in law reform? There are obvious benefits to academic input (speaking for law academics generally). We have expertise, excellent critical facilities and an enthusiasm for law reform. I do not know a single law academic who does not want to make things better in their chosen field. We often dwell on the need for improvements in the law in our articles, chapters and books. But we can also be opinionated and individualistic. And since our academic reputation is built around personal influence rather than achieving group success we find it hard to give in when it comes to a disputed position of principle.

Take privacy law reform for instance. When the Australian Law Reform Commission compiled a group of academics, of which I was one, to define ‘privacy’ for purposes of its law reform project in 2006, we spent a day in a room arguing about the meaning of privacy and since we could not agree on any coherent and constructive concept for law reform purposes defaulted to the most anodyne definition we could all agree on. Since then, each of the Australian, New South Wales and Victorian Law Reform Commissions has reported on privacy. Each had much support and involvement from academics. And each has come up with a different set of proposals for a privacy cause of action.

Although it is widely agreed that it would be best to have a single set of privacy standards that apply uniformly through all of the Australian states and territories, our law reform bodies are unable apparently to come to a common position on what those standards should be. The Australian Law Reform Commission in its 2008 report For Your Information only wants invasions of privacy that would be highly offensive to the reasonable person of ordinary sensibilities to be the subject of a statutory cause of action.

This is in addition to a general requirement that the claimant has a reasonable expectation of privacy. The New South Wales Commission in its 2009 Invasion of Privacy report would dispense with the highly offensive threshold and rest its standard for a statutory cause of action on violation of a reasonable expectation of privacy.

The Victorian Commission in its 2010 Report on Surveillance in Public Places would reinstate a high offensiveness threshold and also specify two privacy causes of action as (1) public disclosure of private information and (2) intrusion on seclusion (the latter read broadly here to encompass covert personally intrusive conduct such as upskirt filming in public places). In addition, it would add a specific defence of public interest. By contrast, the Australian and New South Wales Commissions take the view that the public interest in the defendant’s actions can be adequately accommodated in the general standards.

All these recommendations are interesting to have on the table but the practical question is will they produce useful legal change? Or will we end up in the position where for lack of agreement on what should be done nothing is done?

It is already very clear that there will be opposition from parts of the media to any proposals for privacy law reform, with some quite persuasive arguments being mounted – for instance, that we have got along fine without legislative privacy protection in the past; that the common law provides or will provide sufficient protection where needed including through the equitable action for breach of confidence which has been recognised by courts as giving considerable protection against the misuse of private information; that Australian media are generally self-restrained; and that there are large segments of the population who don’t care much for privacy anyway.

Each of these arguments can be countered: for instance, that the common law’s protection of privacy while good suffers from some uncertainty and lack of transparency; that although the media may be generally self-restrained there have been cases involving media defendants and anyway controlling the media is not the only concern; that although individual preferences for privacy may vary individuals may still legitimately desire a degree of individual control on matters essentially going to personal identity. But until there is a clear consensus on the shape of privacy law reform, I suspect that for Australian legislators it will be all too easy to stick with the devil we know.

For my part, although I was a member of the New South Wales advisory group and involved in its proposals, I like the way the Victorian proposals provide for an explicit balancing between privacy and free speech since I think media and other defendants should have the opportunity to justify their actions as in the public interest.

If supporting a particular claim of privacy is clearly against the public interest (and I am talking about the public interest in John Stuart Mill’s sense of genuine public benefit or avoidance of harm and not simply the satisfaction of public curiosity), why should our laws and legal institutions support it?

On the other hand, I do not support the Australian and Victorian recommendation for a threshold of high offensiveness to the reasonable person. I fear this would be an excuse for some defendants to seek to dismiss genuinely felt claims of privacy as trivial – so avoiding the need to defend their actions as serving the public interest under the public interest defence.

In short, I prefer the New South Wales proposal for reasonable expectation of privacy as the threshold but followed up with a public interest defence to a prima facie privacy invasion. Moreover, I also prefer a generic privacy cause of action to more specifically delineated ones that may not capture every instance of privacy invasion as experienced down the line. ‘Seclusion’, for instance, is a potentially limiting concept no matter how broadly some may seek to construe it. And I cannot understand why overt surveillance should be treated more leniently than covert surveillance. I could go on … But, by now, in true academic fashion I am drifting down the path of fashioning yet another set of proposals for privacy law reform.

Perhaps if Australia was a less populous, less diverse and less argumentative society we would solve the problem of multiple opinions from multiple academics by having only a handful of academics who can basically agree involved in law reform functions in a given area. That’s what happens in New Zealand. For instance, when the New Zealand Law Commission undertook the task of reporting on privacy law reform it established its own ‘academic reference committee’. Yet this did not prevent it coming up with a single set of proposals (to let the common law continue to develop its own privacy tort/s, as already indicated by the courts) in its 2010 report on Invasion of Privacy. But Australia is not New Zealand and it seems we cannot avoid having continuing discussion and debate on issues to do with privacy law reform, especially when academics are involved.

Megan Richardson is a Professor of Law at The University of Melbourne.

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Spycatcher and Wikileaks: history repeats

February 17, 2011

By Dr Katy Barnett

Who enjoys reading spy fiction, or watching spy movies? I do. There’s something interesting about espionage. Perhaps it’s the secrecy which makes it so fascinating. People love to know secrets: it reflects the broader idea that if something is scarce, it must be good. In his book Influence, Robert Cialdini describes the following experiment at pages 246–7:

One Virginia-based study nicely captured the terrible twos style among boys who averaged twenty-four months in age. The boys accompanied their mothers into a room containing two equally attractive toys. The toys were always arranged so that one stood next to a transparent Plexiglas barrier and the other stood behind the barrier. For some of the boys, the Plexiglas sheet was only a foot tall–forming no real barrier to the toy behind, since the boys could easily reach over the top. For the other boys, however, the Plexiglas was two feet tall, effectively blocking the boys’ access to one toy unless they went around the barrier. The researchers wanted to see how quickly the toddlers would make contact with the toys under these conditions. Their findings were clear. When the barrier was too small to restrict access to the toy behind it, the boys showed no special preference for either of the toys; on the average, the toy next to the barrier was touched just as quickly as the one behind. But when the barrier was big enough to be a true obstacle, the boys went directly to the obstructed toy, making contact with it three times faster than with the unobstructed toy. In all, the boys in this study demonstrated the classic terrible twos’ response to a limitation of their freedom: outright defiance.

If you want to make something attractive, make it secret…then everyone will want to know about it.

The other reason we find spying interesting is because of the vicarious thrill of the chase. Basically we are hunter-gatherers who have an inbuilt love of chasing things down and collecting things. Getting information from another person without them knowing about it is a chase extraordinaire. There’s also a clever problem-solving aspect which is attractive to people like myself, who love a puzzle (the only thing I regret about cancelling my various newspaper subscriptions is that I no longer get the cryptic). In addition, one is spying on the Other Side, and therefore, nefarious and tricky techniques are allowable.

Spy fiction as a genre arose in the 19th century, with its roots in the adventure genre. Novels such as the Prisoner of Zenda, which I love, are precursors of the genre. It is related to detective fiction, and some of the Sherlock Holmes stories straddle the two genres. Public interest in spying was also roused by incidents such as l’affaire Dreyfus, where a young French Jewish Army officer named Dreyfus was convicted of treason after it was alleged that he had leaked French military secrets to the Germans. Later evidence indicated that Dreyfus had not leaked the information and that an Army officer called Ferdinand Esterhazy was in fact the culprit. However, top ranking army officials suppressed the evidence, and engaged in a cover-up. After author Emile Zola wrote a letter in the newspaper, the case had to be reopened, and Dreyfus was eventually exonerated.

The various World Wars, followed by the Cold War, meant that international spy agencies were established and were naturally then the subject of fiction. The Cold War and the Soviet threat provided fruitful grounds for authors, particularly after a number of high profile double agents were uncovered in the 1950s and defected to the Soviet Union: Donald Maclean, Guy Burgess and Kim Philby.

James Bond is a romanticised fictional spy from that era, a dashing hero who seduces women and overthrows the villain every time. There is no doubt as to who is right with depictions of Bond: Bond is the Good Guy, up against guys who are indubitably Bad. Perhaps these novels seek to deal with the anxiety that, despite double agents and the like, the Good Guys are winning. Subsequent spy fiction has more complex portrayals: for example, Le Carré’s fictional spy George Smiley is of a bureaucrat who has to maneuver to get what he wants from the various government departments. Le Carré’s novels are more equivocal about the unethical and unpleasant aspects of the job. Many authors of spy novels in fact had worked in spy agencies themselves, including Ian Fleming, John Le Carré, and Graham Greene (who was a friend of Philby).

In Le Carré’s A Perfect Spy, featuring his anti-hero, Magnus Pym, two threads can be discerned. First, there is the oxymoronic nature of spying: one is breaking the law on behalf of the state, in the name of the safety of the state. One character observes about spying at page 324:

‘Hell…we’re licensed crooks, that’s all I’m saying. What’s our racket? Know what our racket is? It is to place our larcenous natures at the service of the state. …’

The other aspect which comes through is the ‘boy’s own fun’ aspect. There is an account of Magnus’s training at pages 533 – 4:

“Imagine Pym’s enjoyment of this… The fun of it. The free-wheeling unreality. He has chased Buchan’s ghost across the moors of Argyll. He has messed about in rubber boats, made night landings on sandy shores, with hot chocolate awaiting him in the vanquished enemy’s headquarters. He has fallen out of aeroplanes, dipped into secret inks, learned Morse and tapped scatological radio signals into the bracing Scottish air. He has watched a Mosquito aeroplane glide a hundred feet above him through the darkness, dropping a boxful of boulders in place of genuine supplies. He has played secret games of fox-and-geese in the streets of Edinburgh, photographed innocent citizens without their knowledge, fired live bullets at pop-up targets in simulated drawing rooms, and plunged his dagger into the midriff of a swinging sandbag, all for England and King Harry…

…

Then back to base camp. Somewhere in Scotland to resume the red thread of violence that has been spun into every new thing he is learning. This violence is not only of the body. It is the ravishment that must be done to truth, friendship and, if need be, honour in the interest of Mother England. We are the chaps who do the dirty work so that purer souls can sleep in bed at night. …”

The other thing is that spies are constantly acting a part. It is hard to know when they are telling the truth and when they are lying, and what the nature of the real person is. In The Perfect Spy, Pym tells various people totally contradictory things at different times, and at the moment he says them, he believes what he says entirely. It is as if he is a functional sociopath. Le Carré’s The Little Drummer Girl also plays with this, when the Israeli secret service use an English actress, Charlie, to entrap a Palestinian terrorist. The Israeli chief operative tells Charlie at 136 – 7:

“Do not confuse our play with entertainment, Charlie,” he told her earnestly. “We are not speaking of some enchanted forest. When the lights go down on the stage, it will be night-time in the street. When the actors laugh they will be happy, and when they weep they will very likely be bereaved and broken-hearted. And if they get hurt–and they will, Charlie—they will surely not be in a position, when the curtain falls, to jump up and run for the last bus home. There’s no squeamish pulling back from the harsher scenes, no days off sick. It’s peak performance all the way down the line. If that’s what you like, if that’s what you can handle–and we think it is–then hear us out. Otherwise let’s skip the audition right now.”

What struck me again was that Charlie’s character genuinely believes the part she acting while she is in it – she does not allow herself to think of the deception she is undertaking. She feels sympathy for the people she is with and empathises with them, all the while deceiving them.

Spy Autobiography – Spycatcher

Spies, and spy books, are fascinating. No wonder, then, that autobiographies of spies are big business. If novels are interesting, one would think that an account from a real spy would be far more interesting, particularly if the government is trying to ban people from reading it. Spycatcher was such a book: a autobiography written by Peter Wright, a former Assistant Director of MI5.

In 1987, Spycatcher was No. 1 on the US hard-cover non-fiction book list. The initial print run was 50,000, but this later rose to 760,000. It was apparently a surprise hit: but if one bears in mind the experiment with the toddlers recounted above, the success really shouldn’t have been a surprise. If you want to make something popular, there’s nothing like a bit of scandal to fuel that popularity. Here was an insider’s account of MI5, one that was so scandalous that the British government had attempted to ban its publication in Britain, Australia, New Zealand and Hong Kong (with noted lack of success in Australia and New Zealand). Litigation drew attention to the book, and the British government was largely unsuccessful in achieving the remedies it sought.

After reading the various Spycatcher cases, of course I couldn’t resist reading the book either. My father had it on his bookshelf, and professed that I was free to take it. When I looked at the book, I was interested to see that there was a faded, dog-eared bookmark about one third of the way through. The bookmark apparently dated from around 1988. Dad had never finished the book. And I confess that I had great difficulty finishing it as well. I had to flog myself to read the final chapters.

I have a theory about books. There are two things that make a book enjoyable:

A “hook” to pull you through – that is, a plot line which instils in you the need to know what happens; and
Good writing that is not clichéd or grammatically incorrect.

Some books possess the first aspect in spades, but entirely lack the second aspect (the example I always use is Dan Brown’s The Da Vinci Code). Some books have exquisite writing, but one hates the characters and as a consequence, one doesn’t care what happens to them (the example I use of this is Patrick White’s The Eye of the Storm, which I failed to finish with about 70 pages to go – I just couldn’t be bothered any more).

Wright’s book is written in grammatical English. I’m sure it’s fascinatingly interesting if you happened to work in that area, and know the people of whom Wright is speaking. But there is a real lack of a “hook” to pull you through the book. I think it would have been a more exciting read if Wright had said at the outset, “Little did I know that I was to be working with some people whom I believe were traitors, although the British government still denies this.” Then I would have spent the book wondering who the traitors were.

As it was, the main parts which interested me were the parts that deal with the oxymoronic nature of spying – one is trusting people who are paid liars and breakers of the law, and the parts which recounted the fun bits of spying.

Pages 31-2: “…MI5 operated on the basis of the 11th Commandment — “Thou shalt not get caught” — and…in the event of apprehension there was very little that the office could do to protect its staff.”
Page 45, on the initial interview with double-agent Kim Philby, in which Philby was cleared: “I realized for the first time that I had joined the Looking-Glass world, where simple but unpalatable truths were wished away. It was a pattern which was to be repeated time and time again over the next twenty years.”

Page 52: “It was boyish fun chasing Russian diplomatic vehicles through the streets of London, up and down one-way streets and through red traffic lights, secure in the knowledge that each driver carried a Police Pass to avoid tickets.”
Page 70: “But in the main, the 1950s were years of fun, and A Branch a place of infectious laughter. As Hugh Winterborn always said: “MI5 is a great life, if you can stand the excitement!”

The controversial part of the book seems to have lain in the allegation which arises in the latter part of the book: namely, that the former Director-General of MI5, Roger Hollis, was a Russian double agent. However, as was noted in the various Spycatcher trials, this was not a new allegation, and it had previously been published in a variety of other books and television programs. Indeed, the powers that be were so worried about the possibility of Hollis being a double agent that, as Wright recounts, they pulled him in to interrogate him once again after his retirement.

A book I found rather more interesting is Malcolm Turnbull’s account of the trial, entitled The Spy Catcher Trial – The Scandal Behind the #1 Best Seller. Perhaps I’m strange. I bought the book for the princely sum of 1¢ from Amazon, so evidently no one else is much interested in it anymore, but I enjoyed it vastly more than Spycatcher itself. Turnbull’s book explains precisely why the Thatcher government was desperate to suppress Wright’s book, something I had not really understood with the benefit of hindsight. I had always thought that surely it would have been a better course for the British government to let the book sink into ignominy than give it loads of free publicity?

The British government did not want its mistakes publicly known. It had already faced embarrassment with the exposure of Anthony Blunt, another of the “Cambridge Five” spy ring of which the defectors Philby, Maclean and Burgess were also members. Blunt was Professor of the History of Art at the University of London and Surveyor of the King’s Pictures. He was also a Soviet double agent. He was only exposed in 1963, and the Spycatcher book describes a number of interrogations of Blunt. However, Blunt’s double agency only became public knowledge in 1979 when a book called Climate of Treason was published which outlined the activities of “Maurice”. Blunt sued to prevent publication of the book which immediately drew attention to him. Margaret Thatcher, then Prime Minister, revealed Blunt’s treachery in the House of Commons.

The government was concerned that there would be a similar hoohah when revelations emerged that Hollis had been suspected of being a double agent. In 1981, Chapman Pincher published a book called Their Trade is Treachery in which the allegations against Hollis were revealed. Pincher’s book was based in part on conversations with Peter Wright, and Wright had been flown out to England to talk to Pincher, and had been paid for his services. A week after Pincher’s book had been published, Mrs Thatcher told the House of Commons that Hollis had been cleared by an independent inquiry and that all evidence against Hollis related to events which could equally be attributed to Kim Philby or Anthony Blunt. Turnbull recounts at page 32:

Wright told me Mrs. Thatcher had misled the House of Commons. “The evidence against Hollis was all post-war. It couldn’t have been laid at the door of Philby or Blunt. The Prime Minister was given a misleading brief by MI5.”

Importantly, the government did not object in the least to Pincher’s book, even though it covered very much the same material as Spycatcher. In part, this was because the tenor of Pincher’s book was different: he noted that the secret services had had a problem with Soviet double agents, but concluded that the present day secret services were in the clear. By contrast, Wright’s book alleged that there were still double agents in the service, and that more questions had to be asked about the operations of the secret service. Turnbull’s book argues that the only reason why the government didn’t mind Pincher’s book is because they actually wanted Pincher to bring the Hollis allegations out into the open in the most uncontroversial manner possible so that they could be tidied up and swept away. Nor did Thatcher want her statement before the House of Commons questioned. The inference from Turnbull’s book is that the orders to persist with the case were coming straight from Thatcher herself.

Turnbull gives an electrifying account of his cross-examination of Sir Robert Armstrong, Thatcher’s Secretary of Cabinet, who attempted to justify in cross-examination why action had been taken in the case of Wright but not in the case of Pincher. Suffice to say, Turnbull took Armstrong to pieces. After reading the book I now understand precisely the flavour of the New South Wales Supreme Court case at first instance (Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 8 NSWLR 341). Powell JA found that the information contained in Spycatcher was no longer confidential because it had been published in a number of other publications to which the British Government had authorised or at least acquiesced. He said acerbically at page 378 of his judgment, ‘it must have been apparent to anyone who had cause to consider the matter, that, as a result of the acquiescence, or inaction of the British Government, the Service has, for years, leaked like a sieve.’

Wikileaks

This provides a nice segue into modern times. Have things really changed so much since Spycatcher? I suspect that they have not, and Turnbull agrees. On 9 December 2010, Turnbull wrote a column drawing parallels between Spycatcher and Wikileaks. He noted that the British government would have done far better in the Spycatcher debacle if it had not relied on the law of breach of confidence but had simply let Wright publish and ignored the book. In this context, Turnbull said of Wikileaks:

“Mr Assange should make sure that any further documents published do not contain information that would impact on current operations and especially in a way that would put lives at risk. We are engaged in a global struggle with Islamist fundamentalist terrorism and any material which assists our opponents should not be published. Any material which puts the lives at risk of those who help us in that struggle should not be published and to do so is morally reprehensible whatever its legal character.

Governments and politicians should be very careful not to make a martyr of Mr Assange and fools of themselves. Julia Gillard’s claim that Assange had broken Australian laws when it is clear he has not, only demonstrates how out of depth she is in this as in so many other areas.

And one may well ask whether her denunciations would be so shrill if instead of the documents being given to Mr Assange they had been handed to a powerful newspaper group.

If The Australian had received that file and its contents were being dribbled out by News Corporation newspapers would she be accusing Rupert Murdoch of high crimes and misdemeanours? I don’t think so.”

I suspect secrecy just encourages people to want to look, like our toddlers at the start of this post. I’m no different – I’ve been fascinated with the revelations arising from Wikileaks, although like Turnbull, I worry about leaks which might harm operatives or society generally. I would be very careful of how I handled Assange. It seems that most Australians support his actions. Government never looks good if it comes down heavily on people like Wright or Assange.

When I was younger, I confess that I had dreams of being a spy. My A-Level History teacher snorted, “You!?! You couldn’t keep a secret for five seconds!” “Ah ha!” I said. “I bet that if I were a spy, I would run around shouting ‘I’m a spy, I’m a spy, I’m a spy!’ Would you believe me? Of course you wouldn’t. You’d think I was a foolish voluble buffoon. I’d be the best spy ever.” She laughed but said, “Maybe you’re on to something”. I think these are the principles I operate on. If I were trying to hide something, I confess that I’d probably hide it in plain sight, amongst all kinds of other totally irrelevant items. Secrecy makes people curious. Still, secrecy makes for interesting stories.

Dr Katy Barnett is a lecturer at the Melbourne Law School

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Invasion of Privacy in the Internet Age – Australian law and the Clementi case

November 1, 2010

By Katy Barnett

“Many of the problems for privacy which were identified in the 1980s are now enlarged, or altered, by the development of the Internet. The speed, power, accessibility and storage capacity for personal information identifying an individual are now greatly increased. Some of the chief protections for privacy in the past arose from the sheer costs of retrieving personal information; the impermanency of the forms in which that information was stored; and the inconvenience experienced in procuring access (assuming that its existence was known). …These practical safeguards for privacy largely disappear in the digital age.”

Michael Kirby, ‘Privacy in Cyberspace’ (1998) 21 University of New South Wales Law Journal 323

1. The Tyler Clementi case

The tragic case of Tyler Clementi raises questions about online technologies and the reach of privacy law. Briefly, Tyler Clementi was a freshman at Rutgers University in New Jersey. In September this year, his roommate, Dharun Ravi, and another dormmate, Molly Wei, were alleged to have placed a hidden camera in Clementi and Ravi’s room. They then proceeded to film Clementi’s sexual encounter with a man and stream it on the web, and attempted to film and stream another encounter.

Ravi allegedly publicised the streaming on his Twitter account, and invited friends to watch the footage on iChat. Posts by Clementi indicate that he reported Ravi to a dorm adviser when he discovered what had happened. Tragically, on 22 September 2010, Clementi threw himself off George Washington Bridge in an apparent suicide.

Ravi and Wei have been charged with invasion of privacy. However, there are questions as to whether the law is up to dealing with this kind of case, as CNN reports:

New Jersey prosecutors were determining Friday whether additional charges, including bias, may be brought against Ravi and Wei.

”The initial focus of this investigation has been to determine who was responsible for remotely activating the camera in the dormitory room of the student and then transmitting the encounter on the internet,” Middlesex County Prosecutor Bruce J. Kaplan said.

”Now that two individuals have been charged with invasion of privacy, we will be making every effort to assess whether bias played a role in the incident, and, if so, we will bring appropriate charges,” Kaplan said in a statement.

What is clear, though, is that the Rutgers case has reignited debate over cyber incivility and whether tougher privacy laws are needed in a technologically advanced age when anyone can instantly disseminate information about another person with relative ease.

Newark attorney Henry Klingeman, who used to be a federal prosecutor, said that in many cases, it’s unlikely that anyone would serve significant jail time on invasion of privacy charges like Ravi and Wei are facing. He said federal laws are stronger, but most cases are tried in state courts.

Gathering or viewing sexual pictures without consent is a fourth-degree crime, and broadcasting them is a third-degree crime.

“State laws treat it like a nuisance, like graffiti on a street,” Klingeman said.

Bias laws deal with hate-crimes on the basis of race, sexual orientation and the like. The New York Times notes:

Though bias charges are generally hard to prove, lawyers and civil rights experts said that New Jersey has one of the toughest state laws on hate crimes. Its so-called bias intimidation law allows prosecutors to lodge separate charges and seek greater penalties against anyone who commits a crime against someone because of the victim’s sexual orientation. The law does not specify that the crime be violent.

Instead, these lawyers said, it was more likely that prosecutors would pursue bias charges.

Robert A. Mintz, a criminal defense lawyer in Newark and a former federal prosecutor, said, “What prosecutors will be looking at is whether this is a prank that had gone horribly wrong, or whether this was an orchestrated scheme to intimidate the victim based on his sexual orientation.”

Mr. Mintz said that prosecutors would likely review the students’ e-mail and Twitter messages, read any essays or blog entries, and interview friends about what they might have said. “If there’s an accumulation of circumstantial evidence, that can be very powerful,” he said.

If the students are charged and convicted of a hate crime, they could face up to 10 years in prison, instead of 5 years for the privacy charge alone. …

However, I want to focus on Australian law in this post. Specifically, I want to consider how the law would deal with this if a similar event occurred in Australia. There are three things I want to look at: whether the conduct would be tortious under Australian law, whether it would be a crime, and whether there would be any ‘hate crime’ additions to sentence. I will address each of these questions in turn.

2. Australian civil laws on observing, communicating and recording private material

The Commonwealth Privacy Act 1998 (Cth) primarily deals with obligations of privacy over information on the part of government organisations and large corporations, not individuals, and thus it does not cover a situation such as that faced by Clementi.

Similarly, the Victorian Charter of Human Rights and Responsibilities recognises a right to privacy in Article 13, stating that a person has a right not to have their personal privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The Charter also prohibits unlawful attacks on a person’s reputation. However, the Charter only covers the acts of public authorities, not private persons.

Therefore, any tort of invasion of privacy must be established at common law. However, as I have noted in a previous post, Australia’s tort of invasion of privacy is at best, nascent. The High Court in ABC v Lenah Game Meats has made obiter comments concluding that Victoria Park Racing v Taylor does not preclude the development of a tort of invasion of privacy in Australia. Some lower courts have since recognised an action for invasion of privacy.

In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy”;
In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered);
In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy;
Also in 2008, in Giller v Procopets, the Victorian Court of Appeal applied breach of confidence law to a situation which bore some similarity to the present one. Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue. Breach of confidence was sufficient to protect the plaintiff’s interest in that case; and
In August 2010, the Victorian Law Reform Commission released the Surveillance in Public Places: Final Report in which it suggested that there should be two new statutory torts, one which deals with misuse of private information, and one which deals with intrusion upon seclusion (See Recommendation 22). Click here for summary.

Possibly someone in Clementi’s position could establish a cause of action based on breach of confidence, as the Clementi case bears some similarity to Giller v Procopets, where the defendant showed videos of himself and the plaintiff engaging in sexual intercourse to the plaintiff’s friends and family, and attempted to show her employer (a more detailed post on the case here).

A majority of the Victorian Court of Appeal found that he was liable for breach of confidence, and that she was entitled to aggravated damages for mental distress suffered as a result of that breach. Ashley JA dissented on a variety of issues, finding that while there was a breach of confidence, mental distress falling short of psychiatric injury was not compensible.

Giller v Procopets follows in the footsteps of English case law, which has increasingly been developing to protect privacy interests because of the operation of the European Convention on Human Rights, particularly Article 8. The disclosure of the video to others would trigger the action in breach of confidence. But it is arguable, perhaps, that the filming itself should give rise to liability for breach of privacy, regardless of whether there was disclosure.

There seems no doubt that the conduct of Ravi and Wei was a wrongful invasion of Clementi’s privacy. Indeed, applying Grosse v Purvis, an Australian judge could hang any civil action on a probable breach of various criminal provisions. The only question is whether such a tort is well-enough established to cover this kind of situation. It is precisely a case such as Clementi’s which shows the need for a tort of invasion of privacy. However, presently there is a gap in the law regarding cases where individuals breach the privacy of other individuals, and misuse private information.

The VLRC’s report on surveillance is particularly pertinent. In paragraphs 7.130 – 7.134, the VLRC says:

The second cause of action should deal with what is often referred to as intrusion upon seclusion or spatial privacy. This cause of action is primarily concerned with the use of a surveillance device, often surreptitiously, to view parts of a person not open to public gaze or to monitor conduct that a person believes to be private. Although this cause of action has not yet been developed by the courts in New Zealand and the UK, it may emerge in time because there can be serious invasions of privacy without any publication of personal information.

The act of intruding upon a person’s seclusion or invading their private space is in itself objectionable conduct. Whether a person had an entitlement to seclusion is best determined by the application of an objective test rather than by relying solely on the views of the person to whom the information relates. This approach means that the tribunal should consider values and attitudes widely held throughout the community before deciding whether the plaintiff had a reasonable expectation of privacy. Examples of the sort of things about which a person could have reasonable expectations of privacy are intimate parts of their body that are clothed and conversations that appear to be taking place well out of the earshot of others.

The gist of this cause of action is the intrusion upon a person’s seclusion or private space. Whether the intrusion is unacceptable is best determined by the application of an objective test rather than by relying solely upon the views of the person seeking seclusion. Again, this approach means that the tribunal should consider values and attitudes widely held throughout the community before deciding whether the conduct was highly offensive. Examples of the sort of behaviour that could fall within this cause of action because the intrusion upon seclusion was highly offensive to a reasonable person include engaging in ‘upskirting’ on public transport or covertly listening to a conversation between people sitting on an isolated park bench.

Both examples in the previous paragraph involve criminal conduct. Although the wrongdoer may be prosecuted for a criminal offence, there is no civil cause of action open to a person harmed by conduct of this nature. An action for breach of statutory duty is not available in these cases because of the limited reach of that cause of action.

The VLRC also recommends that Victoria adopt a tort of misuse of private information. The VLRC’s suggestions should be acted upon precisely so that a Clementi-like situation would give rise to recourse in the civil law if it occurred here.

The US already has a tort specifically dealing with intrusion upon seclusion, as outlined in §652B, Restatement (Second) of the Law of Torts (1977). Similarly, it also has a tort of publicity given to private life, as outlined in §652D of the same Restatement. Presumably Ravi and Wei are likely to have breached both of these torts.

In addition to a tort of invasion of privacy, the US also has a well-established tort of intentional infliction of mental suffering. In Giller v Procopets, Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm. Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that someone who deliberately films an intimate act with an intent to embarrass or humiliate a roommate may be sued for intentional infliction of mental distress if US law was to be adopted in Australia, but at the moment, it remains a mere possibility.

3. Australian criminal law on observing, communicating and recording private material

In most Australian states, it is an offence to take photos of the genital and anal region in circumstances where the person who is being photographed could not reasonably expect to have been photographed. I will use Victoria as my example. Section 41A(1) of the Summary Offences Act 1966 (Vic) provides:

A person must not, with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.
Penalty: 3 months imprisonment.

Section 41B(1) covers visual capture of images of intimate images:

A person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.
Penalty: 2 years imprisonment.

Finally, s 41C of the same Act provides that it is an offence to distribute such images:

A person who visually captures or has visually captured an image of another person’s genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image.
Penalty: 2 years imprisonment.

Each section has a note which states ‘[t]he reasonable expectation test is an objective one-what would a reasonable person in the position of the person being observed have expected. Section 41D sets out the defences to the offences under ss 41B and 41C.

It is suggested that conduct such as Ravi and Wei’s would likely form an offence under ss 41A(1), 41B(1) and 41C, as they observed images of intimate moments between Clementi and another man with the aid of a device, they captured those images and they intentionally distributed it.

Conduct such as that undertaken by Ravi and Wei would also be a breach of s 7(1) of the Surveillance Devices Act 1999 (Vic), which provides that person must not “knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity.” Section 11(1) provides that a person must not knowingly communicate or publish a record of a private conversation or private activity that has been made as a direct or indirect result of the use of a surveillance device. Each of these offences may be penalised by, at maximum, a 2 year imprisonment sentence, a fine, or both.

The Racial and Religious Tolerance Act 2001 (Vic) also criminalises certain ‘hate crimes’. However, as the name of the Act suggests, it deals with only racial and religious intolerance. Thus, s 24 establishes that serious racial vilification is an offence, and s 25 establishes serious religious vilification is an offence. Both are punishable with imprisonment for 6 months, a fine or both. Clearly, conduct such as that which Clementi suffered would not be covered by either of these provisions. It is still unclear why Ravi and Wei allegedly undertook the actions that they did, but if it was a hate-crime, it was likely to be so on the basis of sexual orientation, not race or religion. In any case, vilification offences are never prosecuted in Australia because they occupy an uncomfortable middle ground between anti-discrimination law and criminal law.

Then the question is whether the potential sanctions imposed by the criminal law would be enough to punish conduct such as Ravi and Wei’s which resulted in a person committing suicide, and potentially constituted a hate-crime.

4. Australian hate-crime additions?

As noted above, if Ravi and Wei’s conduct is proven to be a hate-crime, then under New Jersey law this may result in an increased jail sentence. In some Australian states, there are provisions which may result in harsher penalties for hate crimes. The regimes vary from State to State (for a comprehensive survey, see Gail Mason, ‘Hate crime laws in Australia: Are they achieving their goals?‘ Paper presented at Sentencing Conference 2010, Canberra, 6 – 7 February 2010).

Victorian law now gives discretion to judges to deal with hate-crimes in sentencing (as does s 21A(2)(h) of the Crimes (Sentencing Procedure) Act (NSW) and s 6A of the Sentencing Act (NT)). Section 5(2) of the Sentencing Act 1991 (Vic) has recently been amended to insert sub-section (daaa), which states that a judge must have regard to “whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated.” As Mason notes at 6:

The power conferred on the sentencing court is discretionary and although such an aggravating factor must be taken into account, the court is not required to increase the sentence if such a motive is established…

This is in contrast with penalty enhancement regimes such as those in the US which require higher sentences if certain motives are established. Western Australia is the only Australian State to have enacted US-style penalty enhancement provisions in relation to offences of assault, serious bodily harm and the like committed “in circumstances of racial aggravation” (see eg ss 313, 317, 317A, 338B and 444, Criminal Code Act 1914 (WA). This would not cover hate-crimes on the basis of sexual orientation.

5. Conclusion

The Australian law which would deal with a Clementi-like situation is presently uncertain in the case of tort law. As the VLRC has noted, there is a gap in the law where private individuals are concerned, and the legislation is patchy, applying to some entities more than others. The criminal law provisions are scattered. There may be a chance that the sentence would be increased if the crime was hate based, but this is at the discretion of the judge. I very much hope that a situation like this does not happen in Australia, but I fear that with modern technology such invasions of privacy will only increase. The law needs to move swiftly to play catch up.

Katy Barnett is a Lecturer and PhD candidate at the University of Melbourne Law School. She also blogs at skepticlawyer.com.au

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Online Dating, Dating Apps and Privacy

October 14, 2010

by Elisabeth K. Cooke

Generally, it seems counter intuitive to use the most accessible and public forum available to find a person for something as private and intimate as a dating relationship. However, in the United States alone, 20 million people per month visit online dating sites. Online dating services cater to a variety of interests include the general run of the mill categories, for example country of origin, religion and age. If you were under the impression that online dating sites were only for singles – think again. There are also sites that cater to married men and women looking for an affair. The Ashley Madison Agency grabbed headlines in June over their controversial Sydney Airport billboard slogan ‘Life is short. Have an affair while in Sydney’.

While online dating sites provide a number of privacy concerns, users face a dilemma: in order to effectively use online dating services, they must provide some personal information, but providing that information puts them at risk of privacy violations. Often online dating sites will share information with 3^rd party advertisers as a term and condition of use. Even searching for ‘privacy issues’ on a basic google search pops up ads for online dating sites. The Canadian Privacy Commissioner has launched an inquiry into online dating sites particularly concerning what happens to users’ personal information once the user wishes to terminate the account. The inquiry is currently pending.

New apps with new risks: GRINDR

While it may seem that online dating services are making the dating world as easy as online shopping, the Grindr iPhone application has taken this concept much further. Created in 2009 by Joel Simkhai of Los Angeles, California, Grindr is billed as ‘the go-to place for gay, bi, and curious guys to meet.’ Grindr is a location based free downloadable application available on Itunes and is used in 162 countries worldwide. Grindr is mobile and works based on your location, tracking you on a map. Grindr uses the GPS technology in the iPhone (or Blackberry and Wi-Fi in the iPod Touch) to determine your exact location, instantly displaying users profiles to other users around them.

Quite literally, the profiles of other men in the vicinity will pop up in order of proximity, (closest appearing at the top of the list) in exact number of feet or metres. The free version allows users to see up to 100 profiles and an extra 2.99$ a month increases viewable profiles to 200 more profiles. You can immediately see others’ locations on a map, initiate an online chat, view their photos, tag particular users as ‘favourites’ and send private messages. Of course you can follow Grindr on Facebook and Twitter.

There is no need for heterosexual or lesbian envy. Grindr is currently working on new versions for both of those markets.

Grindr’s privacy policy assures users that they can remain 100% anonymous. Users are not required to provide an email address or account registration. They can choose not to have photos of themselves (although they are warned that will probably get more responses from local men by including a photo and some information). Grindr will not share your personal information or location with any third parties other than advertisers. However, Grindr is silent regarding how they will respond to account deactivation or termination. Do they delete your profile? Can other users continue to search for you?

In providing an arguably high level of convenience to men looking for a date, Grindr has developed a way to lift the veil of privacy on dating and social networking sites. Imagine sitting in your office, a restaurant or on a tram and being able pull out your iPhone and browse potential dates, it’s like Marco Polo without the blindfold.

Grindr may be taking away the nuisance of having to go through introductions and small talk, but it’s at the cost of privacy. Anyone with an iPhone, iPad or iPod Touch can download the free application and now see users’ profiles (again, the amount of information/photos is determined by individual users) and pin point their exact location on a map. While we are in the clichéd age of the information superhighway, how much are we willing to sacrifice for these immediate connections? How do we maintain a professional/personal life when the tools and mediums of communication do not reflect that division?

Elisabeth K. Cooke is a JD candidate at the Melbourne Law School

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Victorian Law Reform Commission Releases Recommendations on Privacy Rights

October 14, 2010

By Rebecca Mouy

The VLRC has responded to concerns about increasingly invasive surveillance technologies in public places, recommending a number of changes to the Surveillance Devices Act 1999 and creation of two new statutory causes of action for serious invasions of privacy. Further changes include prohibiting surveillance in toilets and change rooms, and the introduction of a new offence for ‘happy slapping’. Dr Anthony Bendall, standing in for the current Victorian Privacy Commissioner, welcomed recommendations including a broader role for the Commissioner to include regulation of public place surveillance.

The suggested change most likely to affect the media is the introduction of a new statutory cause of action for serious invasions of privacy caused by ‘misuse of private information’ [7.127]-[7.129]. The new statutory cause of action is not limited to public places or use of surveillance device. Thus it potentially has wide-ranging effects on the media. In a submission to the VLRC, ‘Australia’s Right to Know’ argued that media organisations should be exempt from any new cause of action [7.190]. Despite recognising that dissemination of information by the media is of great benefit to the public, the Commission disagreed with this submission. The Commission recommended that the elements (Recommendation 25) of the action should be:

(1) The defendant misused, by publication or otherwise, information about the plaintiff in respect of which he/she had a reasonable expectation of privacy; and

(2) A reasonable person would consider the defendant’s misuse of that information highly offensive

In comparison with reports by the ALRC Part K, Recommendation 74-2 and NSWLRC [5.2] where public interest forms part of the cause of action, the Victorian report recommends that the onus should be on the defendant to demonstrate that it was in the public interest to engage in conduct that would otherwise be unlawful [7.180]. In defining ‘public interest’, the Commission stressed that “not all matters of interest to the public are matters of public interest that ought to deprive a person of their right to privacy” [7.187], however “informing the public on a matter of public importance” [7.170] was considered to be in the public interest. Media organisations would be able to argue consent [7.151]-[7.154] as a defence, and also traditional defamation defences of privilege7.165]-[7.166] and fair comment [7.167]-[7.169].

The report has been tabled in Parliament and is calling for public submissions.

Rebecca Mouy is an LLB candidate at the University of Melbourne.

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The Privacy Imperative in the Information Age: Keating on the media, and the media on Keating.

August 26, 2010

By Jake Goldenfein and Prof. Megan Richardson

On the 4^th of August 2010, former Prime Minister Paul Keating delivered a speech titled ‘The Privacy Imperative in the Information Age “Free for All”’. This was hosted by the Centre for Advanced Journalism at the University of Melbourne. Eight days later the media was invited to respond at another Centre for Advanced Journalism public seminar aptly titled ‘Invasion of Privacy – is it ever justified?’. Below is an outline of the Keating lecture and media response, as well as a brief summary of the legal reforms sought by Keating and others.

The Keating Lecture

Keating’s speech opened with a famous 19^th century article by Samuel Warren and Louis Brandeis on ‘the right to privacy’ that admonished the indolent and prurient seeking of gossip, and fundamentally blamed the media for shifting public tastes; stating ‘when real personal gossip attains the dignity of print, and crowds the space available for matters of real personal interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance’. (‘The Right to Privacy’ (1890) 4 Harvard Law Review 193)

In quoting this text, Keating was attempting demonstrate the media’s culpability for the normative degradation of privacy in society. He also used the Warren and Brandeis definition of privacy, being ‘to protect those persons with whose affairs the public has no legitimate concern, from being dragged into undesirable and undesired publicity…’ to preface his speech.

Keating’s speech was a disparaging characterisation of the media today, claiming ‘these organisations proclaim the importance of free speech, in the dissemination of news, but clearly are more at home in the entertainment business’. Although he acknowledged ‘the battle that Warren and Brandeis fought against the evils of gossip has been well and truly lost with the passage of time’, Keating noted the issue of privacy is clearly still in 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.’

To emphasise that the issue is still very much alive, Keating endorsed the recommendations relevant to the media in the 2008 Australian Law Reform Commission report including:

changes to, but continuation of, the largely self-regulatory arrangements that are a condition for the exemption media organisations enjoy from the Privacy Act;
introducing a definition of ‘journalism’ in the exemption and altering the definition ‘media organisation’;
permitting media organisations to engage in standard setting only when also committed to independent privacy standards developed in conjunction with the Privacy Commission and the Australian Communications and Media Authority; and
the establishment of a general statutory cause of action for breach of privacy.

Why we Need Privacy Protection

Keating attacked the media’s response to a proposed statutory privacy action, particularly the parroted defence of ‘the public’s right to know’.

The exegesis of celebrity media’s position came from the Deputy Editor of Sydney’s Daily Telegraph when questioned over the ‘public interest’ in the publication of supposed nude pictures of Pauline Hanson. Her response was ‘that is for our readers to tell. That will be determined by the number of people that buy the paper’.

Other examples of invasion of privacy provided were the publication of photos of Lara Bingle in the shower, and reporting of then NSW Transport Minister David Campbell leaving gay haunt Ken’s of Kensington.

Statutory Cause of Action

With respect to a statutory cause of action, Keating claimed the common law provides too piecemeal and fragmented an approach for what should be a unified action. He suggests a legislative solution would remove uncertainty, give effect to Australia’s obligations under article 17 of the International Covenant on Civil and Political Rights and bring us in-step with peer jurisdictions such as the UK, New Zealand and Canada.

Media Self-regulation

Keating attacked the broadcast and print media’s self-regulation, especially in light of codes of practice that define and reprove breaches of privacy. He pointed to gaps in the transparency and independence in the investigation of complaints as well as weak enforcement mechanisms, citing that nobody has ever been expelled from the Media Entertainment and Arts Alliance for a breach of standards.

The ‘Right to Know’ coalition’s defence of self-regulation speciously claims that the media regulation framework is effective and working well as evidenced by the low number of complaints, investigations and breach findings. However, Keating opined the self-regulation is ‘more or less a set of home town arrangements for the media companies’ with dodgy funding based on circulation, meaning News Ltd is the major contributor.

Finally, Keating suggested industry leaders and profession should acknowledge that improvements are needed rather than aggressively standing behind the status quo, as well as provide guidance, education and training in defining ‘the public interest’.

For those wanting to read more of Keating a transcript of the lecture can be found on the Centre for Advanced Journalism webpage. A recording of the Keating lecture can be found here.

The Media Response

A week after Keating delivered his speech, the Centre for Advanced Journalism hosted a panel of media representatives to respond, moderated by Michael Gawenda. Invited to talk were: ABC Radio’s Virginia Trioli; Text Media Group founder and CEO Eric Beecher; and the Herald Weekly Times editor-in-chief Phil Gardner.

Virginia Trioli

Trioli spoke first, focusing her submission on explaining the conflict journalists face in relation to ‘the right to know’. She announced her support for Keating’s arguments, citing the nude Pauline Hanson photos as evidence that some publications had lost touch with what activates the public’s right to know. Trioli stated certain media outlets unfortunately struggle to comprehend the distinction between ‘the public interest’ and ‘of interest to the public’.

Trioli argued that personages submitting themselves to the media, such as Julia Gillard appearing in Women’s Weekly, should not open them up to inappropriate personal questions because the media hounds them ex ante into those compromised positions. She claimed this confusion is a ‘bind’ for the media because of its infantile prurience in establishing the distinction between the fascinating and the inappropriate.

For those reasons, Trioli supported Keating’s position on introducing a privacy cause of action. She questioned the accountability of the legal system and the amount of clarity in judicial adjudication of media action, but considered those arguments overborne by the corrosive damage invasion of privacy can inflict on the institution of journalism.

Phil Gardner

Phil Gardner followed, and unsurprisingly responded directly to Keating’s targeting of News Ltd. Gardner prefaced his defence with the fact that Herald Weekly Times produced 1000 news pages and hefty amounts of on-line content weekly, and sometimes mistakes were made. He claimed occasionally standards and ethics lapse when producing so much content, but it is neither deliberate nor related to increasing revenue.

Gardner argued that Keating approached the entire issue with ‘hypocrisy’, claiming if he still wanted to be a public figure he is not entitled to demand the media not interfere with his family. These comments referred to Keating’s privacy tirade in November 2009 when an article in the Sunday Telegraph alleged Keating’s daughter Katherine kicked one of its photographers at a social event, screaming ‘do you want me to throw you down the stairs and kill you?’

Gardner’s comments echoed then News Ltd chairman John Hartigan who stated ‘it is difficult to stomach the hypocrisy of Paul Keating… What we have now is a man calling for a new law so that people like him can use their wealth, power and privileged positions to avoid scrutiny when it suits them, while remaining happy to exploit the media for their own gain at other times’.

In response to Keating’s direct attack on News Ltd, Gardner outlined systems in place at HWT to demonstrate its awareness of the sensitivities of newsgathering. These included: a code of conduct; training for young journalists; and the upcoming appointment of an HWT readers’ ombudsman.

However, Gardner maintained that much of the privacy debate was archaic, as things had changed since the 70s, 80s and 90s. For example, he claimed voters no longer vote exclusively on policy, rather family and image are sufficiently important to allow the media to investigate those aspects of politician’s lives.

Gardner said ‘bollocks’ to Keating’s critique of self-regulation and the insinuation that the media is focused on circumventing effective governance. He claimed the attack on the funding arrangements of the press council were unfounded as industry funding is an acceptable world wide model.

On the proposed cause of action for breach of privacy, Gardner argued there are already numerous (and sufficient) legal privacy protections such as the Surveillance Devices Act, trespass laws, defamation, and breach of confidence. Further, he argued that codified privacy laws such as in the UK only protect the rich and famous. Finally, he argued ‘those who shout the most about privacy are working hardest to be in the media’.

Eric Beecher

Eric Beecher tackled Phil Gardner’s submission directly, stating that if News Ltd was truly about to engage in a brave new ethical world, ‘we can all go home’. On the chance that the situation doesn’t change, he added, he wanted to make a few points.

Beecher criticised the recurring ‘right to know’ trope as a veil on the true motivations of career advancement, profit, and circulation – all of which emanate from the endemic ‘wink and nod’ culture of large media offices. He claimed journalists and editors would not admit it in public or private because they know it’s immoral. As such, when Keating delivers a sound argument in favour of creating a breach of privacy action, the organisations engaging in such breaches defend themselves with political clout to prevent new privacy laws emerging.

While Beecher acknowledged there is an intrinsic challenge for privacy laws to curb sensational abuse while protecting the legitimate investigative role of the media, he believes eventually political frustration and public dismay about media will force governments to legislate.

Finally, Beecher argued against media self-regulation. He claimed because many large media organisations fail to operate within an ethical culture, he lacked confidence they would act in the public interest when performing regulatory functions.

Question Time

Michael Gawenda prologued the debate by noting that while Phil Gardner apparently welcomed privacy debate, unlike Fairfax, not a single News Ltd publication reported Keating’s initial lecture.

There were several interesting audience questions, with one audience member asking what protection a statutory cause of action for breach of privacy could offer beyond the existing privacy protection in other laws. The response from the panel was ‘effectively everything on Today Tonight’, however the issue warrants further explication.

The Centre for Media and Communications Law has offered a number of public seminars on the existing legal position as well as the various proposals for law reform offered by the Australian Law Reform Commission and New South Wales Law Reform Commission. (Details of the seminars can be found on the CMCL website and the latest seminar is written up in the (2010) 15 Media & Arts Law Review 264.) Recently, the Victorian Law Reform Commission joined these efforts with its own proposals for two new statutory causes of action for serious invasions of privacy (among other things): see the Commission’s Report on Surveillance in Public Places on the Victorian Law Reform Commission webpage.

It will be interesting to see what comes of the proposals but there does seem to be a heightened privacy-consciousness these days, especially vis-à-vis actions of the media. Personal experiences can make a difference here. If Keating’s polemic on privacy was possibly triggered (at least in part) by his daughter’s experience with the media at a social event, we note that Warren and Brandeis’ article on ‘the right to privacy’ is said to have been prompted by the disruption of Warren’s daughter’s wedding by the ‘yellow press’. The article has turned out to be one of the most influential pieces of legal writing on the right to privacy to date.

Jake Goldenfein is an LLB graduate and researcher at the CMCL and IPRIA’ at The University of Melbourne

Megan Richardson is a Professor of Law at The University of Melbourne.

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Comments Off | privacy | Tagged: Centre for Advanced Journalism, Eric Beecher, Fairfax, invasion of privacy, Jake Goldenfein, media law, media self-regulation, Megan Richardson, Michael Gawenda, news, Paul Keating, Phil Gardner, privacy law, Virginia Trioli | Permalink
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Online Dating, Dating Apps and Privacy

Victorian Law Reform Commission Releases Recommendations on Privacy Rights

The Privacy Imperative in the Information Age: Keating on the media, and the media on Keating.

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