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May 1998 - Volume 10, No.2
Invasion of Privacy What has the Press Council had to say when ruling on allegations of breach of privacy? Deborah Kirkman tries to find the underlying principles behind the Council's adjudications in this area. "The Council recognises that considerations of public interest (as opposed to public curiosity) may in special circumstances over-ride the right to privacy ".[1] Principle 3 mandates that publications should respect the "privacy and sensibilities of individuals". Exemptions are made for matters of "public record" and "obvious or significant public interest". Most invasions of privacy matters which go to the Council for adjudication are ones where the question is whether the public interest defence is justified. The following discussion is a brief overview of invasion of privacy matters which have been addressed by the Council. Those interested in a more detailed analysis can look into the record of all the Council's adjudications maintained on the AustLII website, a record that can be searched by subject. The Press Council upheld, on the grounds of privacy and safety, a complaint from a judge about the publication of his address in a report on a letter-box bombing outside his home.[2] Yet, it dismissed a complainant's objection to publication of the fact that his home was unoccupied during a robbery. The Press Council believed in the latter case that public interest over-rode the privacy argument.[3] Two recent cause celebre adjudications, involving ex-Senator Bob Woods and Prime Minister John Howard, are the first in which the Council has had to address the privacy concerns of public figures in Australia. It is of interest to note that each was brought by third parties (disinterested readers of the publications) and not by the public figures themselves. Photographs were taken of Bob Woods and his wife, in conversation in their backyard, by a photographer standing outside the home. While noting that the issues surrounding the former Senator (at that time the subject of allegations of rorting) were of public interest, and that there was no trespass, the Press Council found that the photographs were "a blatant example of a breach of privacy".[4] It added that it saw "no compelling public interest in the obtaining and publication of pictures of this kind."[5] The "PM" adjudication found that the newspaper involved had not breached Mr Howard's privacy unethically. The background was a regional paper's invitation, in an article critical of the PM, to readers to "pay a visit"[6] to him while he was on holidays in the area. The article was accompanied by a map and directions on where to find the PM. The complainants argued that the PM was not treated fairly and the paper had invaded his privacy by urging readers to interrupt his vacation. The Council adjudicated that the coverage "verged on the irresponsible and on an unnecessary invasion of privacy" [7] (emphasis added) though, in dismissing the complaint, it noted that "public political figures are open to scrutiny, whether on holiday or not" and that, in any case, the PM had in effect breached his own privacy by offering photo opportunities to the media during his holiday. There are a number of adjudications which reinforce the requirement not to identify victims of sexual assault.[8] And the Council could but only find against a newspaper which named a young man who had disappeared while swimming, and which stated that he had drowned. At that stage his death had not been confirmed, nor had his relatives been informed of the accident.[9] A more difficult decision to make was regarding the publication by a regional newspaper of the names of convicted child offenders in the local area. In dismissing the complaint, the Press Council adjudicated that "the publication was a matter of public record and sufficiently significant public interest to over-ride whatever privacy rights existed".[10] Also dismissed was a complaint against a metropolitan newspaper which published the names, ages, diagnoses, number of admissions to hospital and cause of death of nine people who committed suicide while suffering serious mental illness. The details were published without the consent of surviving relatives and friends. The Press Council once again noted that the names were on the public record. It also acknowledged that the complaint involved difficult questions on the balance between public interest and respect for privacy. However, in dismissing the complaint, it held "that the newspaper was entitled to take its stand that there was an over-riding public interest in its graphic presentation to draw attention to an alarming state of affairs".[11] The Press Council has adjudicated many times on the publication of photographs. Sometimes the issue at stake was 'taste' - always a difficult concept to define. The following examples are where privacy was a primary matter of concern. A photograph of a murder victim slumped in the front yard of his home was deemed not to be an invasion of privacy. While recommending restraint in the reporting of violence in pictures and words, the Press Council accepted greater leeway in the reporting and depiction of crime and noted the paper's argument that photography was an important part of journalism.[12] Compare that with a photograph of a boy taken after the murder of his mother and the suicide of her partner. The boy had told the photographer to go away (after the photo had already been taken). In upholding this complaint, the Press Council considered that even though the photograph was taken in a public place, and the story was of public interest, the over-riding requirement was that fair reporting did not require such an intrusion into privacy.[13] The Council has applied as a criterion, in the consideration of complaints about the publication of pictures of tragedies, the likelihood that relatives or friends of the photographed person would see the picture. In dismissing a complaint about a photograph of an injured Tour de France cyclist (who later died), the Press Council observed that the picture was used extensively worldwide and was a matter of public interest.[14] The difference between that adjudication and the upholding of similar complaints has been the proximity of the event. In one, a picture was published in her home city of a woman whose car, minutes before the picture was taken, had hit five pedestrians, one of whom later died. In upholding the complaint the Council agreed with the complainant that "publication of the photo, a single-column head-shot which would have clearly identified the grief-stricken woman to anyone knowing her, was a violation of her privacy".[15] Similarly, by a 9 to 8 majority, the Council upheld a complaint against the publication of a photograph of a dead man at an accident site in a small regional newspaper. The Council explained that "there is still a distinction between photographs of the unidentified victims of foreign carnage, and a front page picture of a body in a local community where many people might know the dead man".[16] The Council has been particularly conscious to protect the privacy rights of children. It found against a paper which published a photograph of the five year old girl, in her school uniform. The girl was the daughter of an arrested drug dealer. The paper argued that it was its "duty to bring home to the public the terrible consequences of drug abuse".[17] The Council adjudicated against the paper, stating that it "was in gross breach of the most pertinent principle in this complaint, failure to respect the privacy of an individual".[18] However, in the case of the publication of a photo of fifty members of the Mt Druitt High School senior class, illustrating a story about the school's poor final exam results, the Council dismissed (by a 9-8 majority) the complaint. It considered that "the photograph was in the public domain and the newspaper had a right to use it. The Council's principles hold that the respect for the privacy and sensibilities of individuals should not prevent publication of matters of public record or obvious or significant public interest." [19] The Council upheld other aspects of the complaint related to inaccuracies and misrepresentations in the article. Conclusion As you can see, the Council has found the line between invasion of privacy and the public interest a difficult one to draw. However, its adjudications do throw into relief the important questions publications have to consider when determining whether a particular story which might involve an invasion of privacy meets the criterion of being in the public interest.
Footnotes
Note: The AustLII site carries Council adjudications 1-1100 see also [ return to top ] Return to APC News 1998 Index Documents with the |
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