The 'public interest' test

PROFESSOR H P LEE looks at how the 'public interest' element is weighed against infringements of privacy in the Australian Press Council's adjudications.

The Australian Press Council was established in 1976 as a self-regulatory body dealing with the print media, now over-sighting all publicly available newspapers and magazines, and the Internet sites of its publisher members, within Australia.

The twin aims of the Press Council are 'to preserve the traditional freedom of speech, and of the press, within Australia by keeping a watch on developments which could threaten such freedoms' and 'to ensure that the free press acts responsibly and ethically, by providing a forum to which anyone may take a complaint concerning the press'.

Underpinning the existence and functioning of the Press Council is its commitment to certain fundamental beliefs. It equates the freedom of the press to publish with 'the freedom of the people to be informed'; it acknowledges that freedom of the press entails 'an equivalent responsibility to the public'; and it has stated unequivocally that, in dealing with complaints, the Council 'will give first and dominant consideration to what it perceives to be in the public interest'.

Complaints are dealt with by reference to a template of nine general principles called the 'Statement of Principles'. Pervading these principles is a key defence available to a newspaper, namely, the invocation of the public interest element. 'Public interest' is defined as 'involving a matter capable of affecting the people at large so that they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others'.

The right to privacy

Privacy concerns are recognised by Principle 3 of the Statement of Principles:

Readers of publications are entitled to have news and comments presented to them honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest.

In the complaints that have led to an adjudication issued by the Council, the main focus has always been on balancing the competing considerations of privacy concerns and the role of the press in publishing matters of 'public record' or 'obvious or significant public interest'.

Recent finding on privacy

Two reports published in The West Australian on 16 March 2005 led to a complaint from the Council of Official Visitors and the WA Department of Health (Adjudication No. 1299). The first report on the front-page, which was headlined 'Naked walker is prime double murder suspect', concerned the deaths of a woman and her four-year-old daughter at Margaret River and suspicions that a family member with a history of mental illness had killed them. The newspaper also published a large photograph of a naked man who had been wandering in the streets after the killings. The photograph did not show the man's face. However, the caption and the story identified him by name and stated that he was related to the two deceased. He was also named in the second report that stated that he was suspected of the killings. A smaller version of the photograph was published two days later along with critical letters submitted to the newspaper.

The complainants asserted that the publication of the photograph was demeaning and humiliating and that the man's privacy had been violated. The photograph, according to the newspaper, was of 'compelling news value'. It was taken in a public place and pertained to an incident witnessed by the public.

The Council found the publication of the photograph to be in violation of its principles regarding respect for the privacy and sensibilities of individuals. Obviously, the Council was not persuaded that the public interest on this occasion had prevailed over the right to privacy.

In adjudicating on a complaint over an article arising from the disappearance of Maria Korp and the discovery of the missing woman a few days later unconscious in the boot of her car, the Council was asked to rule on whether the article on the front page of the Herald Sun had violated Ms Korp's privacy (Adjudication No. 1277). The article reported that Ms Korp and her husband belonged to an Internet swingers' site. The Council dismissed the complaint because the Korps' entry on the swingers' website was readily accessible and therefore in the public domain. Furthermore, the article reported on a police investigation into a possible link between the swingers' site and the disappearance of Ms Korp. In the view of the Council, the article related to matters of public record and its publication was clearly in the public interest.

In both adjudications discussed above, the onus was placed on the newspaper to justify its infringement of the right of privacy. This onus is made more explicit in the British Press Complaints Commission's Code of Practice. Principle 3 (headed 'Privacy') of that code states:

Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.

The British Code of Practice, unlike the Australian Press Council's Statement of Principles, contains a more exhaustive definition of the public interest. It provides:

1. The public interest includes:
    
1. Detecting or exposing crime or a serious misdemeanour.
    
2. Protecting public health and safety.
    
3. Preventing the public from being misled by some statement or action of an individual or organisation.
    
2. In any case where the public interest is invoked, the Press Complaints Commission will require a full explanation by the editor demonstrating how the public interest was served.
    
3. There is a public interest in freedom of expression itself. The Commission will therefore have regard to the extent to which material has, or is about to, become available to the public.
    
4. In cases involving children editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

Children

Although it is not provided for explicitly in its Statement of Principles, the Australian Press Council also places importance on the protection especially of children. In the case of a complaint brought by businessman, Rodney Adler, against The Sydney Morning Herald, the Council held that the publication of a photograph of him and his teenage son preparing to board a plane was justified by the then prevailing circumstances (Adjudication No. 1189). At that time, Adler was on bail after being charged with serious offences by ASIC and facing further scrutiny through the HIH Royal Commission. The photograph, taken at a check-in counter, indicated he was taking his family on an overseas holiday. In response to Mr Adler's concerns about the unwarranted publicity cast upon his son, the Press Council said:

While public figures like Mr Adler sacrifice this right in some circumstances, the Council is especially concerned for the protection of their families, friends, and other members of the public caught up in newsworthy events.

Nevertheless, the public interest in the publication of the photograph outweighed the privacy rights of the son. It was legitimate for the public to be informed that Adler's family was joining him on an overseas holiday despite his legal difficulties at the time.

The absence of special circumstances led the Press Council to uphold a complaint against The Advertiser for publishing a photograph of a grieving boy after the discovery of the murder of his mother and suicide of the woman's de facto husband (Adjudication No. 518). The photograph showed the boy leaning against a wall with his face totally concealed. When the boy saw the photographer taking the pictures of him, he asked him to leave. This request, according to the Council, should have been a sufficient indication that the boy did not want exposure in the newspaper. The Press Council found that the newspaper should have shown a greater respect for the boy's obvious grief.

Safety concerns

Another consideration that the Council takes into account in the balancing process is the safety of those whose privacy has been violated. Thus, it was wrong for the newspapers, against which a complaint was lodged, to reveal the identities of the Perth couple who won a $30 million Powerball jackpot in Australia's largest lottery win and who had sought anonymity from the Lotteries Commission (Adjudication No. 1177). The report had included images of the husband, their house and the family car. According to the Council, the published report 'included details which, in view of the amount of money involved, should have been left out'.

Safety consideration also led the Council two decades ago to uphold a complaint by a District Court judge against The Sun that had published a report about a bomb explosion in the letter-box outside the judge's home. The newspaper also published a front-page picture of his house and his address (Adjudication No. 213). The judge claimed that the actions of the newspaper were 'quite unjustifiably detrimental to his personal safety'. He pointed particularly to the killing of one judge of the Family Court and the wife of another and that there was at the time 'a very real problem of judicial security'.

Sexual assault

The Press Council has indicated that it would be a rare occasion for a public interest defence to succeed in the case of newspaper reports that identify the victims of sexual assaults. A clear ruling was laid down by the Press Council in a 1986 adjudication (Adjudication No. 290, which upheld the complaint about publication of the woman's name and address):

Subject to statutory restrictions and valid judicial orders, newspapers are free to publish fair reports of court proceedings. There are strong reasons of public interest for this freedom to remain. A consequence is that journalists carry the responsibility for making a professional judgment about what will be reported. There has long been a consensus amongst responsible journalists that as a general rule nothing should be reported which might identify the victim of a sexual assault and this attitude is strongly endorsed by the Press Council. A sexual assault is a gross invasion of privacy and dignity involving humiliation and embarrassment as well as physical suffering. Publicity compounds the suffering and may also be a deterrent to the reporting of the offence. In these circumstances the publication of any identifying particulars of the victim of a sexual assault can only be justified by some compelling reason of public interest or fairness. This will rarely occur.

Public figures

The 'public figure' factor is another relevant consideration in the balancing process, with the Press Council still requiring a newspaper to justify its breach of privacy of a public figure. Thus, in a complaint brought by a third party against The Daily Telegraph, the Press Council described the publication of sneak photographs of Senator Bob Woods and his wife Jane in private discussion in the backyard of their home as 'a blatant example of the unjustified breach of privacy' (Adjudication No. 916). The Senator was then under the spotlight over allegations of rorting parliamentary travel allowances and that he had been in a relationship with a woman who was a Liberal Party worker.

It was argued by the newspaper that there was no trespass involved and that therefore the pictures were legal. The Press Council noted that, even though the photographs were taken from a distance, the published pictures gave the appearance of having been taken close to the Senator and his wife. The Council was not persuaded that there was a compelling public interest in the obtaining and publication of pictures of this kind.

On the other hand, in another adjudication involving a public figure, the Press Council rejected a complaint, brought by a third party, that the Newcastle Herald had invaded the privacy of Prime Minister John Howard (Adjudication No. 957). The newspaper had carried an article inviting readers 'to pay him a visit' while the Prime Minister was on vacation in its circulation area. The article was accompanied by a map showing how to find the PM. The article was published against a backdrop of criticisms by the newspaper over a failure to visit Newcastle immediately after an the closure of the main local steel mill. In rejecting the complaint, the Press Council found the coverage had 'verged on the irresponsible and on an unnecessary invasion of privacy', but that 'public political figures are open to scrutiny, whether on holiday or not'. A persuasive element in the case was that the Prime Minister had previously offered photo opportunities to the media during his holiday.

Woolf's guidelines

In the English case of A v B plc ([2003] QB 195), Lord Woolf in the Court of Appeal enumerated a guideline that substantially reflects the approach that is taken by the Australian Press Council on the privacy rights of a public figure. The guideline (Guideline 12) can be summarised:

where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances;

even trivial facts relating to a public figure can be of great interest to readers and other observers of the media - conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure;

whether you have courted publicity or not you may be a legitimate subject of public attention - if you have courted public attention then you have less ground to object to the intrusion which follows; and

the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.

The last proposition in Lord Woolfe's guideline has never been put to the Press Council. Such a proposition, if put as a question of press ethics, would undoubtedly be rejected . To argue that the public interest would be served by the publication of any tidbit in which the public may be interested in in order to preserve the number of newspapers being published would in effect give newspapers carte blanche to publish any information. Such a proposition, according to Andrew Caldecott QC, would blur the distinction 'between that which is merely of interest to the public and that which is in the public interest to publish'.

Privacy Standards

In order to secure exemption from the Privacy Act 1988 (Cth) for acts done or practices engaged in by a media organisation in the course of journalism, the Press Council published standards that deal with privacy in the context of activities of media organisations. One of the standards addressed the 'public figure' issue as follows:

Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities.

In summation, it is true that 'the line between invasion of privacy and the public interest' is a 'difficult' one to draw, a spectrum of considerations go into the balancing process, and at the end of the day the Press Council has to make a judgment in determining the priority of competing public interests.

PROFESSOR H P LEE

Editors' notes:

Professor HP Lee is the Sir John Latham Professor of Law at Monash University, Melbourne, and is currently Vice-Chairman of the Australian Press Council.

A slightly longer version of this paper was presented at a conference (2 December 2005) organised by the Centre for Media and Communications Law at The University of Melbourne. The paper continues to be a work in progress

Since its writing, the Council has addressed further privacy matters, including Adjudications No 1316, 1318, 1327, 1329, 1338, 1344 and 1350, all of which can be viewed at http://www.presscouncil.org.au.)

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