The Right to Privacy

In his regular column, the Council's Chairman, Prof David Flint, looks at the implications for privacy in two recent Press Council adjudications.

There is a story that the police once received a complaint that a naked man could be seen in a nearby flat. They called by, but couldn't see anything. "But you can from up here," replied the complaining neighbour, standing on a chair. No doubt the man observed felt secure from prying eyes in the privacy of his flat. Just as former Senator Robert Woods and his wife did when they discussed in the backyard the recent events which so changed their lives.

They must have been surprised to see photographs of this in The Daily Telegraph and other newspapers. The newspapers' actions were certainly controversial, the Press Council receiving two complaints. One complainant accepted the Telegraph's explanation but the other asked the Council for a ruling. Neither Senator Woods nor Dr Jane Woods actually complained. However, the Australian Press Council, unlike its British equivalent, accepts complaints from third parties.

It was claimed that the Australian press was going down the path established by newspapers in many other Western countries; that there were now no limits to media intrusion into the lives of public figures. But the overseas tabloids themselves frequently initiate photographic exposes, about quite irrelevant sexual liaisons. The Telegraph did nothing of the kind. The Woods affair was different. It was made public by the participants themselves. And the alleged misuse of taxpayers' funds was a legitimate subject for media scrutiny. The Telegraph said this should extend to photographic scrutiny. The Press Council has however drawn a line around a politician's home. And just as the house itself is private, so is the backyard - even if it can be photographed from the street.

According to the Press Council the photographs look as if they were taken in the backyard itself. A zoom lens was probably used from an elevated position in the street - a chair perhaps? The Council argues that there must be an over-riding public interest to justify publication. For example, that the photograph provided significant evidence in relation to the allegations of financial impropriety.

Lord Wakeham, Chairman of the British Press Complaints Commission (BPCC), recently proposed a series of questions editors should ask themselves in cases where they are considering these matters. (See Best Practice.)Assuming there is a genuine public interest, he suggests editors then ask whether there are ways to disclose it which would minimise the invasion of privacy of the individuals concerned. If photographs are to be part of the story, editors could ask themselves whether the public interest requires their automatic inclusion, or whether the photographs are simply illustrative?

The English Court of Appeal recently refused to review a BPCC decision rejecting a complaint about a hospital photograph of the notorious child killer, Ian Brady. Lord Woolf, who presided over the court, nevertheless suggested it would be wrong to say that even Ian Brady had forfeited any right at all to protection under the British code of ethics. In other words, even his crimes would not justify an open slather.

In the Woods' case, the Telegraph published the Council's adjudication, thus fulfilling its obligations. It also criticised the adjudication - as it is entitled to do. This, it said, had seriously underestimated the public interest in this matter - indeed the Council itself had infringed upon the public's right to know. On the other hand, ABC's Media Watch said the Council overlooked Dr Jane Woods' separate right to privacy. While some people choose to become public figures by courting publicity, others have this status thrust upon them. Unfortunately, this happened to Dr Woods. From the time that allegations were made that the former Senator had improperly claimed for work allegedly done by his wife, and the police raided her practice, she changed, however involuntarily, from being a purely private person. The couple could no longer escape scrutiny. But did this extend to photographs of the couple behind a high fence in their backyard taken with a zoom lens from outside? The Press Council said it did not.

Townsville Bulletin

On the same day as the Woods adjudication, the Press Council was called on by the Australian Council for Civil Liberties (ACCL) to rule on the action of The Townsville Bulletin in publishing extracts from a directory of convicted paedophiles. Criminal trials and convictions are on the public record. For good reason. How else would we know that justice is being done? And, in this case, all the convictions were recorded within the last six years.

Naturally, the privacy of victims of sexual crimes is generally respected. Should we extend this to convicted paedophiles who have served their time? Should they have a chance to start a new life? Was the time served adequate? Was the inevitable early release justified? Is there a likelihood that they will offend again? These questions are frequently debated in the press, on talk back radio and on current affair programs. They are all issues of legitimate public interest.

Unlike The Daily Telegraph, the President of the ACCL, Terry O'Gorman, not only criticised the decision, he attacked the Press Council itself. Mr O'Gorman called for the creation of a statutory body to regulate the press. A strange proposal to come from civil libertarians! This sort of press regulator is after all the badge of authoritarian governments. If it is proposed to protect the privacy of convicted paedophiles, parliament could of course legislate this way without the need for a statutory press regulator. But this is unlikely - the public would not accept that.

These two privacy rulings are, above all, about the public's right to know. The media, the Press Council and others all argue that that right must be balanced with the obligations owed to individuals who want their privacy respected. The Press Council has now, more clearly, indicated that matters of public record are legitimate matters for press discussion where there is an obvious public interest but has also said that an individual's position as a public figure does not necessarily make all of that person's private life or family a matter of public interest.

PROFESSOR DAVID FLINT

Notes:

1. The full text of the two adjudications referred to above are published in this issue, Adjudication Nos. 916 and 918.
   
   
2. The Council is always interested in reading the views of members of the public on the issues of privacy raised in this article and on other relevant issues. The Council can be contacted by fax (02 92676826), email (pressco@fl.net.au) or mail (Level 3, 149 Castlereagh Street, Sydney 2000).

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Best Practice

Lord Wakeham, Chairman of the UK Press Complaints Commission, suggested in a speech, "Privacy and the Public Interest", seven questions editors should ask themselves when questions of a possible invasion of privacy arise.

1. Is there a genuine public interest involved in invading someone's privacy as defined by Clause 18 of the Code - detecting or exposing crime, protecting public health, preventing the public from being misled - or is this simply a story which interests the public?
   
   
2. If there is indeed a genuine public interest, have you considered whether there are ways to disclose it which minimise the invasion into the private life of the individual concerned?
   
   
3. If you are using photographs as part of the story, which will have to be, or have already been, obtained by clandestine means and therefore compound the invasion of privacy, does the public interest require their automatic publication or are they simply illustrative?
   
   
4. If there is a genuine public interest which cannot be exposed in any other way than intrusion - and possibly the obtaining and publication of photographs - have you considered whether there is any way to minimise the impact on the innocent and vulnerable relatives of the individual concerned, and in particular the children?
   
   
5. If you are intending to run a story about someone connected or related to a person in the public eye in order to illustrate a story about that public figure, are you satisfied that the connection is not too remote and that there is a genuine public interest in mentioning that connection?
   
   
6. Where you are preparing to publish a story seeking to contrast what a public figure has said or done in the past with his or her current statements or behaviour, have you satisfied yourself that it is fair to make such a comparison and that the original behaviour or statement was recent enough to justify publication in the public interest?
   
   
7. If you are intending to run a story about the private life of an individual where there used to be a public interest, have you applied each of these guidelines afresh in case such a defence no longer exists?

see also
Index on privacy material

Index of David Flint's articles

Lord Wakeham on Privacy and the Press

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