Is Privacy Dying?

At the WAPC Istanbul meeting, Prof Dennis Pearce was on a panel discussion on privacy. There he raised some issues for discussion on the question of how a press council is to judge matters of personal privacy.

Which, if any, of the following newspaper actions constitutes a breach of privacy?

(1) The publication in a local newspaper, having limited circulation, of a photograph of the body of a well-known local person who had been killed in a car accident. The body was covered with a blood-stained sheet but the dead man's leg protruded from under the sheet. The accompanying story identified the man.

(2) The publication in the newspaper of a large provincial town of an article identifying the Prime Minister's holiday house together with a map showing how to travel to it by road and inviting members of the public to visit him to talk about the effect of his economic policies on the local area.

(3) The publication in a major metropolitan newspaper of a photograph of a member of parliament engaged in an acrimonious discussion with his wife in the back garden of their family house. It had been disclosed in the parliament that the member had been having a relationship with another woman and it was also claimed that he had been misusing his parliamentary expense allowance. The picture had been taken with a telephoto lens by a person standing outside the house.

(4) The publication in a regional newspaper of a list of persons living in the area who had been convicted of sex offences involving children.

The Australian Press Council answered (1) Yes; (2) No; (3) Yes and (4) No.

The four cases illustrate what are often regarded as the four types of privacy:

• privacy of the person
• privacy of space
• privacy from eavesdropping and spying
• privacy of personal information.

Each example could be considered to fall within one of the categories but in each case the Council took into account the factors relating to the particular case in reaching its conclusion.

The Adjudications

In case (1) it was a small community that was affected and there was no anonymity for the deceased. With this decision may be contrasted a ruling that a picture of a naked woman being rescued from a burning building did not constitute a breach of privacy as the picture was not published in the city where the fire occurred and presumably the woman lived.

In case (2) the Prime Minister had made much of the fact that he had spent his holiday in the same house at the same small beach town for many years, and he had also allowed himself to be photographed in the town. The Council indicated in its discussion that if the Prime Minister had sought to guard the secrecy of his retreat it may have viewed the article differently.

In case (3) the Council was moved by the fact that the picture appeared to have been taken from very close proximity and that there was no discernible public interest in the revelation of the parties' domestic dispute.

In case (4) the Council was of the view that the information released was on the public record and that the crimes were of such a nature that the people living in the area had an interest in being able to identify the offenders. A much more difficult case is likely to come before the Council in the form of the revelation of allegations of sexual misconduct of a member of parliament that were said to have occurred some 30 years ago and which at the time of publication had only been made to the police who had not begun investigations.

It is of interest that in all cases the complaint was not made by the person named in the report but by a member of the public expressing concern. The Australian Press Council permits complaints to be lodged by third parties.

These cases illustrate very clearly that the concept of what is private is essentially specific to culture, time and the individual. The publication of pictures of dead bodies is a relatively recent phenomenon in Australia as is the publication of details of sexual allegations. Members of parliament have been free from the type of revelations that have been common in English newspapers although their sexual peccadilloes have been known to the Press.

The Impact of Developments

It is useful to look again at the four categories of privacy referred to above and consider the impact on the print media of other media and of technological developments.

Privacy of the person: There is no doubt that the electronic media with its nightly parade of graphic depictions of news events has had an impact on what the print media thinks it can and should portray. The display of the dead, maimed, brutalised and starving in far away countries has conditioned the population to scenes from which only a short time ago they would have recoiled. The issue for the print media has become the extent to which they should emulate their electronic cousins.

This month the Council will determine a complaint relating to a colour photograph published on the front page of a major metropolitan newspaper showing a policeman who had been shot. The picture taken from a helicopter reveals the policeman lying on the ground in a large pool of blood. It is horrible. But is it worse than the pictures of Congolese soldiers beating and shooting prisoners that were shown on the television the same night? Has the public become inured to these ultimate invasions of the privacy of the person? Is there a difference between the transience of a TV shot and the preservation of an invasion that comes from its inclusion in a newspaper?

Privacy of space: The ubiquitous TV crew with its camera thrust in the face of persons considered newsworthy is another feature of modern society. The media scrum has become a regular "space invader". If the TV is collecting news for its nightly filler, how can the print media not be there also?

Privacy from eavesdropping and spying: Action to prevent eavesdropping and spying is the current flavour in Australia. A number of States have enacted controls over the use of surveillance devices. These are limited to the use of aids to aural and visual detection of citizen's conversations and movements - but only in private. What is "private" seems narrower than the UK Press Complaints Commission definition which contemplates that private actions can occur in public places. The Australian Press Council has not opposed these moves except to request that the legislation include a general public interest test to allow newspapers to publish the result of what might be observations of criminal or corrupt activities.

Privacy of personal information: The world has undergone such technological change as to render this almost meaningless. My income is known by a large number of bodies; my spending practices can or will be able to be tracked. If I had a police record that information would be held by a number of agencies none of which could guarantee confidentiality.

A corollary of this increased accessibility of personal information is the ease with which it can be distributed. The publication of gossip on the Internet has driven newspapers to follow up material that it would not have pursued in the past. The revelation on the Net of President Clinton's dalliance with Monica Lewinsky undoubtedly led to a "me too" approach from newspapers fearful that they would look foolish if such a news item was only to be learnt from the new medium. Contrast the silence in a previous era relating to the sexual exploits of Presidents Kennedy and Johnson.

If one accepts that other media outlets are ignoring privacy issues what should the print media do about it? And what should Press Councils do about the print media?

The Implications

The likelihood is that the print media is going to refuse to be left behind by other forms of dissemination of news or by technological changes. If privacy issues are not going to constrain others, print will be there too - at least as far as the law allows. So they will be constrained by legislation applicable to all news gathering and presentation, eg surveillance device controls. But beyond this, as public acceptance or at least acquiescence in privacy invasion occurs, the print media will adapt to it.

There will still be constraints imposed by culture that will be reflected in sales. The page 3 type of photo of a naked woman that increases sales in one country will not be acceptable in another and will lead to a drop in sales. When this is recognised, the publication of the material will cease. It is the same with privacy invasion. If sales of newspapers reflect a public distaste for the information being published, the newspaper will change its approach. However, the issue of privacy should not be driven only by the newspaper proprietors' judgment of the market. There is a justifiable fear that the public's desire for gossip will dictate the actions of newspapers. And if my predictions set out above are correct, this is more likely than not to occur.

Where does a Press Council fit into this? It too must adjust its thinking to changing circumstances. It is most important to the credibility of Press Councils that they do not raise the expectations of members of the public beyond that which the Council is capable of delivering or indeed should deliver. It is of little value both for complainants and a Council if it asserts that it will uphold complaints on privacy grounds where the reality is that public acceptance of such an invasion has changed and newspapers have recognised the change. If privacy is to lose its significance, Press Councils must not hold themselves out as maintaining a standard that does not accord with general public expectation or newspaper practice.

Taste and Fairness

The inclusion of representatives of members of the public on Press Councils is meant to bring an understanding of current community views and standards to the deliberations of the Council and to balance the views of newspaper representatives. This use of public opinion as a touchstone can be seen in two of the principles by which the Australian Press Council judges complaints. These may be of relevance when considering actions of newspapers if privacy is thought to be a criterion that is of diminishing weight.

Council Principle 4 reads: News obtained by dishonest or unfair means, or the publication of which would involve a breach of confidence, should not be published unless there is an overriding public interest.

Council Principle 6 reads: A publication has a wide discretion in matters of taste, but this does not justify lapses of taste so repugnant as to be extremely offensive to its readership.

The application of these principles rather than that of privacy would have brought about the same result in the four cases referred to at the beginning of this paper and avoided criticism of failing to recognise or treat consistently complaints based on privacy.

The application of the principles, particularly the latter, is to be judged by the collective sense of the Council but it allows regard to be paid to factors relevant to the particular community, thereby moving attention away from the interests of the individual which forms the core question in privacy issues. If, as I have suggested, privacy as a human value diminishes in significance, it will carry less weight in the choice of material that newspapers publish. The principles set out above may provide a better working guide in a future age as to what it is appropriate for Councils to set as standards for newspapers to follow when they publish material about people.

Staying with the language of privacy raises expectations in the minds of complainants that the Councils will not be able to meet. Many newspaper stories breach privacy in some respect. I suggest that it is where that breach is based on unfair means or exceeds community standards of acceptability that a Council should intervene. It is largely a question of the language that the Council should use. The danger for Press Councils is that to stay with the language of privacy is to adopt a criterion that is fast losing any definition.

DENNIS PEARCE

see also
Index of Dennis Pearce's material on the website
Index on privacy material

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