When Should Privacy Be Legally Protected?

November 4, 2011

By Megan Richardson

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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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 4th 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 19th 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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