A legislated right to privacy needs to be balanced with a right to free expression, or celebrity gold diggers will come out to play (Mark Pearson)
The right to privacy is a relatively modern legal concept. Until the late 19th century, gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.
The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright of some steamy images of Dumas with the Paris Hilton of the day – 32-year-old actress, Adah Isaacs Menken.
The court held his property rights hadn’t been infringed but that Dumas did have a right to privacy and that the photographer had infringed it.
Across the Atlantic in 1890, the top US jurist Samuel D. Warren teamed with future Supreme Court Justice Louis Brandeis to write the seminal Harvard Law Review article “The right to privacy” after a newspaper printed the guest list of a party held at the Warren family mansion in Boston.
Warren and Brandeis wrote: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”
Celebrities, lawyers, paparazzi and the gossip media were there at the birth of the right to privacy – and the same players occupy that terrain today. While both privacy and free expression are recognised in many national constitutions and in international human rights treaties, Australia is rare among Western democracies in that it has no constitutional or Bill of Rights protection for either. That distinguishes us from the United States, United Kingdom, Canada and New Zealand which all have constitutional or rights charter requirements that proposed laws must be considered for their potential impact on free expression. It is one of the main reasons for the complex array of legislation, court decisions and industry codes of practice limiting Australian journalists’ intrusion into the affairs of their fellow citizens.
Laws covering defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright all have a privacy dimension. The Privacy Act controls the collection and storage of private information by corporations and government.
There are very few situations where media intrusion into privacy isn’t covered by either one of these laws or the journalists’ code of ethics. Proposals to replace the self-regulated ethics systems with a statutory news media regulator would add yet another layer to the regulation of privacy intrusions.
The crux of the proposed “statutory cause of action for a serious invasion of privacy” is whether a citizen should have the right to sue over a privacy breach and receive an award of damages or an injunction to stop publication.
Over the ditch, Kiwi journalists now have to navigate a judge-made right to privacy that, interestingly, developed from a celebrity suit in which the plaintiffs lost the case.
Mike and Marie Hosking were New Zealand media personalities who had adopted twins and later separated. They asked for their privacy, but a magazine photographer snapped the mother walking the twins in their stroller in a public place. They sued, claiming breach of privacy. The NZ Court of Appeal invented a new action for breach of privacy, but held that it did not apply in this particular case.
The Kiwi privacy invasion test requires “the existence of facts in respect of which there is a reasonable expectation of privacy” and that “publicity given to those private facts that would be considered highly offensive to an objective reasonable person”. But this is set against the backdrop of the New Zealand Bill of Rights Act which protects free expression.
Australia’s High Court famously left the door open for a possible privacy tort in the ABC v. Lenah Game Meats case in 2001, after animal liberationists had secretly filmed the slaughter of possums in an abattoir in Tasmania and the ABC wanted to broadcast the footage – the fruits of the trespass.
It is hard to quarantine this latest push by the federal government from the News of the World scandal in the UK and the Greens-championed Finkelstein inquiry into media regulation.
The government had effectively sat on the Australian Law Reform Commission’s proposal for the statutory cause of action for three years before it released its Issues Paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy last September, in the wake of the phone hacking revelations from London.
Few journalists or their media organisations object to the notion of their fellow citizens’ embarrassing private information being kept secret. However, it is in the midst of a breaking story like that involving collar bomb extortion victim Madeleine Pulver, a celebrity scoop like the Sonny Bill Williams toilet tryst images or the case of the fake Pauline Hanson photos that genuine “public interest” gives way to audience gratification and the resulting boost to circulation, ratings or page views.
Free expression is already greatly diminished by this mire of privacy-related laws and regulations without adding a new statutory cause of action for privacy.
But if this latest proposal is advanced further, journalists should insist on:
- a free expression and public interest defence reinforced in the strongest possible terms
- removal of the existing laws it would duplicate
- a strong “offer of amends” defence like that now operating in defamation law and alternative dispute resolution provisions to deter celebrity gold diggers.
Short of a Bill of Rights enshrining the freedom of the press and free expression, these demands amount to the minimum the news media deserve in a Western democracy.One reason for a tort, of course, is that protestation of efficacious self-regulation and practitioner codes of ethics have on occasion proved to be quite empty.
With freedom comes responsibility. It's a freedom that has been abused by leading media organisations such as News, an abuse that has been inadequately condemned by the MEAA. That organisation has historically been ineffectual in dealing with instances where "genuine 'public interest' gives way to audience gratification".