02 September 2020

Civilisation and Privacy

'Too Much Information: Civilisation and the Problems of Privacy', the 2020 Griffith Law School Michael Whincop Memorial Lecture by High Court justice P A Keane, argues that 'the problems of privacy are problems of civilisation'. 

As Gleeson CJ said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd: "Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people." Living under the scrutiny of our fellow citizens is no picnic. The stresses of human interaction intensified by the exigencies of city life are apt to affect individuals adversely in many ways. Living together in cities means that we see rather a lot of each other; often more than we would like, and indeed more than may be objectively good for us as individuals. 

In 2000, the American legal scholar Jeffrey Rosen, in his book, The Unwanted Gaze, wrote: "[W]e are beginning to learn how much may be lost in a culture of transparency: the capacity for creativity and eccentricity, for the development of self and soul, for understanding, friendship and even love. There are dangers to pathological lying, but there are also dangers to pathological truth-telling. Privacy is a form of opacity, and opacity has its values. We need more shades and more blinds and more virtual curtains. Someday, perhaps, we will look back with nostalgia on a society that still believed opacity was possible and was shocked to discover what happens when it is not." 

Earlier, and more famously, Sigmund Freud wrote in his book Civilisation and its Discontents of the anxieties and neuroses generated by civilised living. The social disciplines necessary to the highly associated life lived in a city, whether self-imposed or externally enforced, serve to suppress and frustrate the gratification of our ordinary selfish human instincts, and so create internal conflicts which exacerbate, and are themselves exacerbated by, the social conflicts that are multiplied by city life. And these stresses are further aggravated by the, often well-meaning, suggestions of others as to how we might best live our lives. Not infrequently, those suggestions harden into orders, enforced by the power of the State. ... 

Significantly, the political philosophy that Plato developed in reaction to what he despised as mob rule by the kind of totalitarian democracy that crushed Socrates did not include any notion of individual rights and freedom of conscience. His philosophy was one of totalitarian aristocracy, of rule by grim guardians who would decide what is best for the rest of us, and in whose republic there was no place for poets. Two and a half millennia after Socrates chose to take the hemlock, we would not now be so blithe to follow him to a like fate in pious deference to the judgment of anxious busy-body neighbours about whether or not we are offending their gods. Our notion of a free society encompasses more than freedom from the demands of a foreign tax-collector; we are deeply conscious of the need for space for ourselves as individuals, for some distance from each other.  ...

Our perspectives on these kinds of questions change with the times. The dynamics of the tension between the public and the private in relation to issues of freedom of religious belief and worship, and freedom of association generally and social solidarity and fellowship have been both creative and destructive. The glories of medieval art, architecture and education were created in a milieu in which the energies of Christian religious belief were harnessed by the nascent European states allied to the Church. Thousands upon thousands of people were energised by the belief that they were ensuring the salvation of their own souls bound themselves together by vows of poverty, charity and obedience to become the instrument that recivilised Europe. 

On the other hand, the horrors of the religious wars and the Inquisition were driven by the willingness of those good Christians who were clothed in the power of the State to act upon St Augustine's mandate "impelle intrare": make them come in. On this view, if one loves one's fellow, one does not allow him or her to go his or her own way in private error: love requires that the erring soul be brought back, by force if necessary, to the truth as we know it to be. And, unfortunately for large numbers of people in Europe during the Middle Ages, the Dominicans loved them very much. 

The problem today 

The State has long been recognised as the most obvious threat to individual rights, especially the right to be let alone. But our fellow citizens and the fourth estate, jealous of the public's "right to know", are also no little part of the problem of privacy. Whether it is the attention of the State or its agents, or of the media, or simply the scrutiny of our fellow citizens that threatens the quality of our lives as individuals, some legal protection for the private space in our highly associated lives has come to be recognised as essential. Louis D Brandeis was one of the greatest Justices of the United States Supreme Court. He, together with Samuel Warren, was prompted to write a ground-breaking article, "The Right to Privacy" that was published in the Harvard Law Review in 1890. That article initiated and inspired modern discussion of the problem of privacy in the common law as an aspect of modern civilised living. Brandeis' great insight was that privacy should not be understood as a right based on notions of property, but on the idea "of an inviolate personality", as an aspect of our common human dignity. 

In the century following publication of "The Right to Privacy", the Courts of the United States developed a cause of action to protect privacy so understood. This development was greatly aided in the United States by "the discovery in Griswold v Connecticut of 'the zone of privacy' located in the penumbras of specific guarantees in the Bill of Rights" and "in a number of cases [in which] the prohibition imposed by the Fourth Amendment ... upon unreasonable searches and seizures has been interpreted by reference to a reasonable expectation of privacy". The problem, as a matter of particular concern to lawyers, did not pass unnoticed in Australia. In 1937, Sir George Rich, speculating on the consequences of the invention of television, said presciently: "I venture to think that the advance of that art may force the courts to recognise that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life." 

Nevertheless, Australia, with its very different constitutional context and stronger tradition of judicial restraint in relation to the making of law, did not follow the lead of the United States. And so, notwithstanding the many and profound changes to the common law in Australia wrought by decisions of our courts in the last two decades of the 20th Century, there is "still no 'right of privacy' properly so called in the Australian common law". 

A right to privacy? 

The technological advances that began in the 20th Century have aggravated rather than mitigated the problem of distinguishing between the public and the private aspects of our lives. In earlier and simpler times, people knew that they were crossing the line between the private and the public when they entered the agora or the forum or the town hall, or even when they appeared on television, to engage in debate. The physical fact of the public location of the activity both marked the activity as a matter of public concern. The physical fact of face to face communication also helped to ensure a minimum level of civility. The coming of the digital age has, in large part, erased the gentling effect of the physical prompts to civility. Civility is the indispensable virtue of democracy. It is the virtue that helps us to accept the unsatisfactory possibility that we may not be right about an issue, and that those who think differently may nevertheless be decent and honourable not to be despised. 

Online communication, for all its intensity and ubiquity, is an isolated and isolating activity conducted without the ordinary social constraints provided by the presence of another human being and the possibility of provoking an uncivil reaction. The Information Revolution has largely removed these physical markers. Without the guidance of these physical markers, the need to articulate a stable theoretical basis for drawing the boundary has become at once even more imperative and yet more difficult. 

The ubiquity of social media has exacerbated the stresses associated with intensive interaction between individuals. An active online presence is likely to mean finding oneself in heated disputes with people we do not know and may well have difficulty identifying. Some keyboard warriors may be malignant; some may be relatively innocent but of questionable mental health. An absence of civility is characteristic of much of this communication. And there is confusion as to whether much of this debate should be regarded as a private or public activity. 

In the recent case of Comcare v Banerji , the High Court was called upon to determine a challenge to the validity of provisions of the Public Service Act 1999 (Cth) that required employees of the Australian Public Service ("APS") to at all times behave in a way that upholds the apolitical character of the APS. Ms Banerji, an APS employee, used Twitter to broadcast more than 9,000 tweets, many of which were critical of her Department, other employees, government and opposition policies and Members of Parliament. Ms Banerji argued that insofar as the provisions of the Public Service Act purported to authorise sanctions against an APS employee for political communications that did not, on their face, disclose her true name, or the fact of her being an APS employee, they were invalid as an unjustified burden on the constitutionally implied freedom of political communication. The Court held that the maintenance of an apolitical public service is a legitimate purpose compatible with the system of responsible government contemplated by s 64 of the Constitution 

One academic commentator criticised the decision on the basis that it allowed sweeping intrusions into the private lives of public servants . In this regard, it must be remembered that the implied freedom could be invoked at all only because Ms Banerji claimed to be contributing to public debate about matters of public interest. It is a contradiction in terms to claim to be speaking in the public square about the public interest while at the same time insisting that one is engaged in a private activity. 

Keane J throws a bucket of cold water on proposals for a broad common law cause of action regarding an invasion of privacy, stating 

In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , a majority of the Justices of the High Court expressed themselves to be open to the development of the common law to accept "a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life ... 'free from the prying eyes, ears and publications of others'". 

Given the tenor of the reasons of the majority in Lenah Game Meats, it would not be surprising were the High Court now to accept a tort of invasion of privacy, along the lines of the US Restatement. But such a cause of action would probably be confined to cases of intentional intrusion, physically or otherwise, upon the solitude or seclusion of an individual or his or her private affairs . In the case of the publicising of a matter concerning the private life of an individual, the conduct would be actionable if the matter publicised is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public. 

Modern experience suggests that, when the public interest in knowing the truth about government and public affairs collides with the protection of an individual's privacy, "privacy almost always loses" . In the Supreme Court of the United States in Bartnicki v Vopper, Justice John Paul Stevens, delivering the opinion of the Court, observed that "privacy concerns give way when balanced against the interest in publishing matters of public importance". It is also likely that a new cause of action along the lines adumbrated in the US Restatement would not be available to a corporation because the cause of action is concerned to protect human dignity, not the opportunity to exploit information about business. 

Salacious celebrities 

That leads us to consider for a moment the extent to which the law, in seeking to protect privacy, should be concerned to protect individual property or financial interests associated with privacy or something more basic such as our shared dignity as human beings. It might be thought that after a thousand years of common law, financial and property interests are already sufficiently protected. The question as to the extent to which the law should protect human dignity has arisen in an acute form in cases where celebrities have sought to monetise their private lives. Should the law aid individuals to profit from the commercialisation of their intimate moments? I would not presume to offer an answer to this question; but Louis Brandeis seems to have suggested an answer that some might find surprising. In the seminal article on privacy by Brandeis and Warren that I mentioned earlier, the preservation of individual privacy is presented as an aspect of human dignity in relation to which the community as a whole has an interest. 

In this regard, Brandeis and Warren wrote, in a passage that I need to cite at some length:

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. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.(emphasis added)

In this passage, considerations of human dignity underlie Brandeis' view of the need for legal protection for the privacy of the individual. The other side of the coin of concern about our shared human dignity has its practical manifestation in a concern for the moral "health" of the community. Breaches of individual privacy can cause harm not only to the dignity of the individual whose privacy is violated, but they are also apt to diminish the dignity of others as members of a community demoralised by gossip obsessed with other people's moral failings. In Brandeis' view, privacy is not merely something which individuals should be able to assert against governments, or as against the media who seek to uncover our private moments whether for public amusement or public disapproval. Respect for privacy may encompass the broader concern that human dignity itself requires the keeping of a respectful distance from each other's private life. On this view, the right to a happy private life for all citizens is not protected by imposing legal limits on the power of the State or the fourth estate to intrude upon the life of the individual; there should also be a brake upon the demoralisation of the community and the degradation of public discourse by the sharing of what belongs to our private lives and our intimate moments. 

While some may wish the law did more to rein in the compulsive oversharing of their friends and family on social media, the suggestion in the seminal article on privacy by Brandeis and Warren that the notion of the right to privacy includes an obligation to respect the entitlement of other individuals to freedom from the public sharing of information of a private nature seems largely to have escaped critical attention. That is not surprising: its implications are far from straightforward and are not particularly attractive. 

If we accept that we all have an interest as a matter of our shared human dignity in ensuring that our private lives should be kept private to ourselves, then is not the celebrity who seeks to commercialise his or her private moments in breach of this mutual expectation? If I take seriously the notion that your private life is none of my business, should the law help you to monetise your attention-seeking affront to our shared dignity, if the only reason you are doing so is to be paid for publishing your intimate moments? 

If the logic of this position were to be accepted, then the courts would refuse the protection of the tort of invasion of privacy where it is invoked to vindicate a celebrity's financial interest in being able to turn the intimate moments of his or her life, or family life, into money. Of course, this is not how the law has developed. Since the decision in Douglas v Hello, English law has allowed celebrities to claim recompense when others interfere with their opportunity to exploit their intimate moments for profit. 

It may be objected that my interpretation of what Brandeis had in mind in the passage I have read out is unduly strained. I don't think that it is. 

Louis Brandeis was clearly concerned with the debilitating effects of gossip and its tendency to debase the standards necessary to the public life of the nation. And the thinking revealed in the passage I have read from Brandeis' seminal article is of a piece with his general outlook and his personal habits. 

Brandeis himself took the idea of privacy, and the demands which it made on the individual, very seriously. He lived his life on the basis that if one was serious about preserving one's privacy, one would have to accept a measure of self-discipline and inconvenience to that end. For him, physical boundaries marked out his private space. He would not allow a telephone to be installed in his own home. Once he was in the sanctum of his own home, even his fellow citizens and friends had to keep their distance. Even outside the sanctity of his own home, Brandeis was not willing to surrender to the social opportunities facilitated by the telephone. He steadfastly refused to use the telephones which were installed in his chambers in the Supreme Court. 

Many would object that Brandeis' distinctly illiberal view of the demoralising potential of oversharing of private matters in public life is too extreme. I doubt that any of us takes privacy as seriously as Louis Brandeis evidently did. A rigorous implementation of the notion of freedom from information touched on in his seminal article on privacy could lead to limits on freedom of expression that would appear to us to be very right wing indeed. Such limits might be welcome in Plato's Republic, but they are quite unacceptable in an open society. While some might welcome relief from the relentless streaming of gossip about other people's private lives, for most of us the prospect of bonfires stoked by copies of "New Idea" – a great leap forward to Fifteenth Century Spain – is simply too alarming to countenance. 


In Australia, we don't have the constitutional foundation for "the zone of privacy" approach discovered by the US Supreme Court in Griswold v Connecticut. Some say that the US Constitution does not, in truth, provide such a foundation either. Be that as it may, drawing the contours of the zone of privacy is an exercise that depends very much on the views of the Judges who on issues of this kind divide in conformity with the views of the political party that appointed them. In Australia, we have neither that blessing nor that curse. Perhaps we need to recognise that relying upon judicial development of the law to solve the problem of privacy has been, at best, a hit and miss affair. The example of Louis Brandeis – one of the very greatest of the judges of the 20th Century – shows that reliance upon judicial reconciliation of the competing values that underlie our appreciation of privacy and the public interest may lead to conclusions that sit awkwardly with the zeitgeist. 

We can, I think, say with some confidence, that experience also shows that it is not prudent to rely upon the media – whether old or new – to solve the problem of striking the right balance between the claims of the public and the private. It is not unfair, I hope, to observe that much of the current agitation for changes to our laws of defamation in favour of greater freedom of speech, and consequently less protection for the privacy and reputation of individuals, comes from those who own, or have ready access to, the mass media and whose financial interests are advanced by reducing the ability of those they harm to claim meaningful redress. 

As Jack Lang famously said: "Always back self-interest. It is the only horse in the race that is always trying." The vested interests of the old media are such that they can always be expected to sacrifice the privacy of citizens, that is to say, all those of us who do not own media outlets, in order to make more sales. The recent litigation involving the journalist Annika Smethurst helps to make this point. The arguments propounded in that case by the media outlets carefully eschewed any attempt to press forward from the decision in Lenah Game Meats towards a broader protection of privacy. 

The position taken by the media in Smethurst is a reminder, if one were needed, that, when the owners of the media are faced with a choice between the right to know and the right to privacy, they can be expected to favour the right with the dollar signs attached - and that will be so wherever one might think the balance of the public interests lies. 

The legitimate self-interest whose energy we need to harness is the interest that all of us have as citizens. It is definitely not the interest of media outlets, such as Fox News, which lies in pandering to the prejudices of its audience and stoking their distrust and disapproval of their fellow citizens. 

The new media, in particular online carriers of user-generated content, have the power to collect vast amounts of information about all of us, and to sell that information to their advertisers. It is in the interest of these platforms to exercise that power as free from responsibility for the harm they cause as they can be. 

If you are a user of social media platforms, you should be aware that they know a great deal about you, and that they are willing to share what they know about you with their advertisers, and possibly others, in return for money. And I have little doubt that Louis Brandeis would say that you should also know that that is so largely because you have collectively enabled them to act as they do, and that, therefore, it is your responsibility collectively to do something about it. 

In the end, there is no comprehensive and stable solution to the legal problems of privacy because there is no bright and eternal line between the private and the public aspects of civilised life. And it is difficult in the extreme to legislate for civility. If we are to do something practical about the debasing of political discourse and the coarsening of public life, it is both necessary and prudent to involve our legislatures, no doubt with the assistance of our law reform agencies and the academic scholarship into which they can tap. It is important to remember that government is not necessarily the enemy, especially in a democracy where we can change our legislature and executive, but not our plutocrats. And we need to engage with each other through them in a spirit of good citizenship ...