Why Australians deserve a right to privacy

This week Australia took a step towards enhancing protection of human rights with the release of the Australian Law Reform Commission’s report on privacy laws. Unlike other common law countires such as the UK, Australia does not currently adequately protect the right of each and everyone of us to privacy.

While the High Court has flagged that such a right probably exists, and Victorian judge Felicity Hampel, in a lengthy and learned judgement last year held that Australia should adopt the lead of the UK in this area, it is fair to say that anyone suing a media outlet or who takes legal action against an individual who communicates private matters to a social networking site such as Facebook will be sailing into uncertain waters in any litigation.

The UK better protects the right to privacy, in part because the European human rights charter stiplates that such a right shall be enjoyed by all individuals.
Naturally some media outlets are already mounting a campaign against the idea that Australians should be able to enjoy the protection of a law that protects their right to privacy.

But we should ignore such arguments given that they are driven purely by self-interest and a sense of self-righteousness on the part of the media. Media companies want to retain the right to publish whatever they see fit, even if it invades and undermines privacy, because they are concerned to sell copy and advertising.

Journalists believe that they should be the arbiters of what is private or not, and generally resent limits on what they perceive as their natural right to invade the space of individuals on the ground that they are fearless seekers of the truth.

The truth of the matter of course is that privacy is as important as that other great shibboleth of liberal democracy - freedom of speech. The recent case of the publication by British newspaper News of the World, of pictures and stories about a private sex party held by British motor racing official Max Mosley, is a neat illustration of this concept.

A decision handed down last month UK High Court’s Justice David Eady found that Mosley was entitled to damages after News of the World splashed a story across its front page in March this year that accused Mosley of having a Nazi themed sex orgy involving prostitutes. One of the participants in the alleged orgy carried a hidden camera and was interviewed by News of the World.

Mosley did not sue for defamation but instead alleged “a breach of confidence and/or the unauthorised disclosure of personal information, said to infringe the Claimant's rights of privacy as protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms.” The European Convention is the UK’s Bill of Rights.

Mosley’s lawyers argued successfully that “the content of the published material was inherently private in nature, consisting as it did of the portrayal of sado-masochistic and some sexual activities, but that there had also been a pre-existing relationship of confidentiality between the participants. They had all known each other for some time and took part in such activities on the understanding that they would be private and that none of them would reveal what had taken place.”

Justice Eady makes it unambiguously clear that a right to privacy does exist in the UK and it will be protected by the courts.
The only defence the media has to breaching an individual’s right to privacy is to argue that “there is a countervailing public interest which in the particular circumstances is strong enough to outweigh” that right, Justice Eady says.

And who decides what is in the public interest - journalists and their editors? No, says Justice Eady. “I cannot believe that a journalist's sincere view on public interest, however irrationally arrived at, should be a complete answer. A decision on public interest must be capable of being tested by objectively recognised criteria,” he says.

So what is a "hard pressed journalist" who faces deadlines to do when confronted with a decision on whether or not to publish a story which infringes the right to privacy?

"There may be a case for saying”, Justice Eady observes, “when 'public interest' has to be considered in the field of privacy, that a judge should enquire whether the relevant journalist's decision prior to publication was reached as a result of carrying out enquiries and checks consistent with 'responsible journalism'."

There is a challenge to the media in Justice Eady’s judgement - if you allow your self-interest in selling copy or boosting ratings to tip the scales in favour of breaching an individual’s right to privacy then you will be punished.

Mr Mosley is not alone in being able to enforce his right to privacy against the media. In May this year the Court of Appeal in the UK said that David Murray, the 5 year old son of JK Rowling, author of the Harry Potter novels, was entitled to take action against a photo agency that took photos of him being wheeled in a pram down an Edinburgh street in 2004.

The law, the Court of Appeal said, “should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to take photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.”

Of course, it is not just the media that infringes the right to privacy - so do individuals. Social networking sites like Facebook and My Space are being routinely abused by individuals to publish information or "dirt" on other individuals. Fortunately, the UK courts are utilising the recognised right to privacy to take action against the offenders.

On July 24 a UK TV industry executive Matthew Firsht, and his company Applause Store Productions, won injunctions and £20,000 in damages against a former friend of Firsht who created a Facebook page which defamed Firsht and his company.

Grant Raphael, who fell out with Firsht over a business dealing, established a Facebook group entitled “Has Matthew Firsht lied to you?” The profile contained false information about Firsht’s sexual orientation, his religious and political views. It accused him and his company of shoddy business practices.

Firsht and his company sued Raphael for misuse of private information, breach of his right to privacy and defamation. He won on all three counts.
Australia needs to adopt a privacy regime similar to that which exists in the UK and the Rudd government ought to move quickly to implement the ALRC report. It is time the right to privacy was taken as seriously here as it is in the UK.