Privacy and the Press

A speech by Ken McKinnon, Chairman of the Australian Press Council, Commonwealth Press Union conference, Sydney, 25 February 2005

Introduction
Contemorary surveillance and invasion
Press Council principles
Australian legislation
Lenah Game Meats
Surveillance Devices
A developing tort of privacy
Implications for the press

Introduction

Those of you who are visitors may have noticed in press advertisements privacy policy statements by banks and other organisations. Newspapers, too, do the same about subscription and other personal data they acquire. They are obliged by law to do that, but privacy is not a constitutional right. Nor, however, is there any clause in the Australian Constitution (or in any over-riding law) equivalent to the protection of freedom of speech, and of the press, in the First Amendment to the US Constitution.

Both federal and state laws privacy laws are in force. A federal Privacy Commissioner administers a frequently amended Privacy Act (1988). That Act is essentially limited to protection of personal information (held by either the public sector or, since 2001, the private sector) covering use of tax file numbers, credit information, data matching and health information. It does not cover other forms of intrusion into personal privacy. The States administer a patchwork of privacy laws with much the same intent. There is no general definition in law of the privacy that individuals may rely upon.

If that were the whole story, privacy and the press would not warrant discussion at this conference. No such luck. Pandora's box is already open. The evidence is that privacy issues are bound to loom larger and larger for the press, both in Australia and throughout the Commonwealth. The vehicle will probably be extension of common law, which tends to be eventually adopted throughout Commonwealth countries, but it could be via new statute law. The implications are such that press anticipation and participation in shaping that future would be a sensible course of action.

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Contemorary surveillance and invasion

Not that debate about privacy and the press is unusual or even novel. If news is information that someone wants to keep private, as one newspaper owner memorably quipped, and if press freedom is the right (and duty) to publish material in the public interest, debate is bound to be perennial. The balance between the individual's right to privacy and the public's right to be informed cannot be easily drawn.

That perennial debate has undoubtedly entered a new phase. The public is concerned, if not apprehensive, about their own privacy, in view of the apparent ease with which their personal data can be obtained and used by others (including the press). The press is often said to be very intrusive. The public is also concerned about the increased availability and reach of inexpensive, powerful monitoring devices. As I write, Nicole Kidman is in the news in Sydney about an illicit listening device planted outside her home. How a workable balance, protective of reasonable individual privacy rights, without curtailing freedom of the press, can be achieved is the nub of the problem.

Consider how you would feel if your privacy were invaded, as it can now be, without your knowledge. For instance, if two of the senior newspaper executives at today's conference had a friendly breakfast together, it would be easy covertly to record the details, complete with digital pictures, without them even being aware that was happening. Plenty of minute devices can be surreptitiously installed for those purposes. If that private conversation concerned prospective Australian media ownership deals, a hot national topic, it would certainly be of sufficient public interest to warrant reporting in the press. How would they feel to see private matters publicly reported, quite possibly in their own newspaper? How would any of you feel if what you thought were private moments, such as conversation or intimate moments with your wife, children or business associates, could at any time be eavesdropped and used by others without redress or sanction?

This is not exaggeration; readily available cheap, miniaturised devices can record conversations through even thick walls. Security cameras that record all movements around buildings already figure prominently in inquests and court cases. These devices can monitor movement, photograph participants, identify smells and undertake other forms of monitoring as required. Camera-equipped mobile phones that are able to take happy family shots can equally easily be covertly employed in dressing rooms, at the beach, to take salacious shots of bare-breasted girls, or, elsewhere, to monitor workers.

Investigative journalism has, of course, long employed covertly acquired voice recordings and pictures to expose crime, leading in one notable Australian instance, to a corrupt Chief Magistrate being photographed at the races with a leading criminal. In that instance, the upshot was an investigation that uncovered endemic corruption and resulted in that magistrate being jailed.

The difference between the past and now is that it is not just the press that can afford or physically organise the gathering of private information. Anyone can do it. The public is concerned about unwarranted and rude intrusions, whether from the press or anyone else.

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Press Council principles

The gathering of news by unfair or dishonest means, or by invasion of an individual's privacy, is and obviously should always be unethical. The print press has well-defined staff handbooks governing the ethics of privacy and publication. Moreover it is subject to the regulatory scrutiny of the Australian Press Council, which considers and resolves any privacy complaint about a newspaper from a member of the public under Principle 3 of its Statement of Principles. Newspaper respect for such sanctions is demonstrated by the fact that fewer than 5 per cent of the complaints received each year by the Council are about invasion of privacy.

The Council, for instance, effectively adjudicated a complaint that related to a Senator alleged to be having an affair with an aide and rorting travel allowances in so doing. A photographer outside his private residence took over the back fence a long-range shot of the Senator on his back patio having an apparently tense conversation with his wife. The Council found against the newspaper, taking the view that the people concerned were entitled to privacy in their own home despite the fact that the allegations against the Senator were matters of public interest.

That instance illustrates how well suited Press Councils, comprising public members, journalists and representatives of press organisations, are for resolving press privacy complaints. No legislation could provide for all shades of grey over an issue like privacy where at least two apparently equally important principles must be weighed. A representative Council brings all points of view to a complaint and its resolution, not always possible in a court of law.

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Australian legislation

But public misgivings have encouraged Australian politicians and legislatures actively to consider new privacy legislation. Given the difficulties, my Council takes the view that whatever the intent it will be difficult in new legislation to avoid the risk of planned or accidental curtailment of press freedom. The press must not be inadvertently hobbled by bad policy or over-reaching legislative responses. Accordingly, the Council has reaffirmed that it should be active and vigilant. So we are trying to anticipate the next stages of the debate and play a continuing role in channelling official responses towards constructive outcomes. Not as part of anyone's lobby; but simply acting in the interests of maintenance of fairness both for individuals and press freedom.

An early opportunity for action occurred when amendments to the Privacy Act (1988) were being considered in 2000. The Press Council was active in making representations. We cannot be sure of their exact effects. Gratifyingly, however, when the Attorney General introduced the government's amendments (to extend coverage of the Act to the private sector), he emphasised the importance of a free press in the context of privacy legislation.

In developing the Bill the government sought to achieve a balance between the public interest in allowing the free flow of information to the public through the media and the individual's right to privacy. In order to achieve this balance the Bill does not apply to acts and practices of media organisations in the course of journalism. A range of other provisions in the Bill also recognise the important role of the media in facilitating the free flow of information to the public.

Apart from the welcome rhetoric, a practical outcome was inclusion in the legislation of an exemption from its purview for media organisations that publicly abide by a regulatory privacy code. It was accepted that affiliates of the Press Council willing to reaffirm their acceptance of its Statement of Principles and the associated Privacy Standards would so qualify. So the (relatively few) privacy complaints about newspapers and magazines continue, as before, to be handled as part of the Council's complaints agenda.

Incidentally, the Council's rational negotiation approach later successfully persuaded government to exempt journalists reporting financial and economic news from the licensing requirements of the recent Financial Services Reform legislation, provided, as with privacy, they are employed by affiliated newspapers and subject to Press Council complaint processes.

The Press Council believes those processes are sensitive and robust enough to balance the requirements of individual privacy and press freedom despite the greater reach and scope of modern surveillance devices. New statute legislation would have to deal with two questions: one, likely to be expressed as how individuals can be protected from unreasonable intrusion and, two, what does privacy mean in law? Both would be difficult to pin down. The concept of reasonableness is a classic legal weasel term for imprecision and chance in judgements).

An early Australian mover on legislation has been Western Australia. Its surveillance devices law created offences for installing, using or maintaining listening devices to record, monitor or listen to a private conversation, or optical devices to visually record or observe private activity, or to attach, install, use or maintain a tracking device to determine the geographic location of a person or object. It defines 'private activity' as not including an activity the parties ought reasonably to expect may be observed; 'private conversation' is defined similarly. The Act includes provision for judge-approved use of devices 'in the public interest'. That Act to date has not prevented publication of any photograph and there are very few instances of it even delaying any newspaper publication of reports on matters of public concern - which rarely require intrusion into 'private' matters.

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Lenah Game Meats

On the national scene, an important development for newspapers was the judgement of the High Court of Australia, in the Lenah Game Meats (2001) case. For the benefit of those of you who are unfamiliar with the case I'll digress and explain the colourful facts. The dispute concerned a commando raid by an animal rights organisation upon an abattoir which was involved in the slaughter of brush-tail possums. The animal activists broke into the premises of the abattoir and installed hidden cameras which recorded the somewhat distressing activities of stunning and killing the possums. The video recording was passed to the Australian Broadcasting Corporation. The abattoir applied to the court for an injunction preventing the ABC from televising the video, lest the graphic portrayal of the plaintiff's activities should dissuade customers from purchasing its products. The abattoir submitted to the court that the broadcasting of the video would constitute an actionable tort of the invasion of its privacy. If the relevant privacy being invaded had been that of an individual the decisions of the court may have been more favourable to the plaintiff. But being concerned only with the "privacy" of a corporation, the court dismissed that application. However, the court emphasised that its decision should not be construed as meaning that it precluded the existence of an actionable right to privacy. In effect, the court opened the door to the Australian courts to establish a tort of breach of privacy. (A judge in the Queensland District Court used that 'door' to create a limited tort of privacy in the case of Grosse v Purvis to which I will refer below.)

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NSW Surveillance Devices

If Lenah Game Meats indicated that the Courts might take us down the path to privacy law, proposals prepared by the NSW Law Reform Commission illustrate the potential dangers for the press of new legislation. In its report on possible changes to surveillance laws, the commission defined surveillance as the 'use of a surveillance device' where there is a deliberate intention to monitor a person, group, place or object for the purpose of obtaining information, whether overt or covert, whether in a public or a private place. (Note the lack of distinction between public and private and the failure to define what constitutes monitoring). Before any such action, it would be necessary to seek approval, or post facto, to justify the actions to a court or some bureaucrat. Almost any press activity in a public place might come within the scope of the proposed legislation, including photographing the crowd at a football match. The need to seek permission or justify actions later (including the requirement to report in writing to the Attorney-General and/or submit to searches by an inspecting authority) would certainly limit the ability of the media to carry out their role.

Whether by design or sheer sloppiness, the proposed definition of surveillance devices would include binoculars at sporting events or opera glasses at the theatre; the use of cameras in public places; and all web-cams, as well as a vast range of activities many of which would not be seen as remotely threatening the privacy of individuals. A black-letter reading of the definitions would mean that contact lenses, hearing aids and even, absurdly, cochlear implants might be interpreted as covert surveillance devices.

Strong Australian Press Council representations seem to have convinced the Attorney-General to delay the introduction of any changes along the lines proposed and quite possibly may result in modifications that will not limit the capacity of the media to report on matters of public concern. As I said earlier, the intent of the Press Council is not to deny that technology has greatly increased capacity to intrude on privacy, and that the privacy of individuals might need to be better protected. It seeks that the balance reached will be protective of both privacy and the free flow of information in the public interest.

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A developing tort of privacy

In all of this the major topic is how the law will evolve. Is there going to be a legal civil wrong (tort) of invasion of privacy, and, if so, what will constitute a breach? The press has to have an interest in how this issue plays out, because until now intrusion on a person's privacy of itself has not necessarily been an offence, certainly not one that could lead to damages awards or criminal convictions. As with defamation, if a legal tort of privacy jells, newspapers will assuredly have to assiduously control the inquiries of their reporters or have many suits to defend.

Privacy is a hot topic in the UK. In 1997 the Lords, in the Wainwright v Home Office case, had said that there was no actionable right of privacy, and that privacy reform 'can be achieved only by legislation rather than the broad brush of common law principle'. In June 2003 the Commons Select Committee on Culture Media and Sport 'firmly' recommended that the government should introduce new legislation to clarify the protection that individuals can expect from invasion of their privacy. The UK government apparently has not moved on that recommendation. Despite that there appears to be, in fact, some movement towards institution of a tort of privacy via common law. The judgement in the Douglas v Hello Ltd (2003) case concerning the unauthorised scoop publication by a competitor magazine of the Douglas-Zeta Jones wedding photographs, pre-sold to OK magazine, also declined to hold that there was an existing English tort of privacy, as such, but decided in favour of the claimants by the breaches of privacy being treated as breaches the law of confidence. Observers claim that that judgement inched English law further towards an inevitable tort of privacy.

Similarly, Naomi Campbell's victory (Campbell v The Mirror Group Newspapers (2004)), despite her being a celebrity in a public place, occurred because the information disclosed about her health was considered to be private, and because the judges took into account that the European Convention on Human Rights had been incorporated into English domestic law by statute. The English High Court awarded damages to Campbell for the publication of photographs of her leaving a meeting of Narcotics Anonymous. In making that award the judge relied on article eight of the Convention and on the decision in Douglas v Hello! to find that there had been a breach of confidence. The English Court of Appeal overturned that decision, finding that it was reasonable to publish the photographs in the public interest. However, on further appeal to the House of Lords in 2004, the initial decision was restored. The key issue on appeal was whether the published material was private. Remember that Campbell was photographed on a public street. The court found that, because the caption to the photograph disclosed that Campbell was departing an NA meeting, the information was private. Thus this landmark case is precedent for the notion that in some circumstances a public figure cannot be photographed in a public street without the risk of litigation. The Lords were divided two to three on the question of whether the relevant information was truly private, but even the dissenting judgments acknowledged that there is no need to establish a relationship of confidence in order to have a right of action for breach of privacy.

A case in NZ (Hosking v Runting (2004)) over the publication of photographs of children of TV personalities taken in a public place was unsuccessful. The plaintiffs in that case argued that the tort of privacy had been established in New Zealand. Their claim for relief ultimately failed, but the judgment fell far short of rejecting the contention that there is a tort of privacy in New Zealand. Indeed, in reciting their reasons for deciding as they did the judges cited a number of New Zealand cases which tended to support the contention. But the judges approached the issue with a caution which seems to echo the approach taken by the Australian High Court in Lenah Game Meats. It should be remembered that the photographs which were objected to by the plaintiffs were, again, taken in a public street and that the plaintiffs had courted publicity prior to the publication and that these facts undermined the plaintiff's action. However, the court also emphasised the point that the New Zealand Bill of Rights Act omits any specific protection of privacy, whereas it does include a specific protection of freedom of speech, in spite of the fact that both rights are included in the International Covenant of Human Rights upon which the Bill of Rights Act is founded. The court expressed a reluctance to make law where the parliament had apparently made a deliberate decision not to do so. It was stated that privacy protection, to the extent that has not been regulated by the legislature, should be left to "incremental development" by the courts over time.

A legal precedent favourable to claimants was established in Australia in a Queensland District Court in 2003. The judgement in Grosse v Purvis established that it is possible to sue for breach of privacy in common law, that is, that there can be a civil action for damages based on an actionable right of an individual to privacy. Sizeable damages were awarded. If not overturned upon appeal, the effect will be to make proceeding via the courts more attractive than under the Commonwealth Privacy Act (1988) because of that Act's cumbersome enforcement procedures and lack of scope for imposing penalties of the magnitude witnessed in the Purvis case.

Legal commentaries have been quick to note the implication for the media of the Queensland decision, suggesting that if journalists and media organisation engage in highly offensive intrusions into people's personal affairs they may be exposed to new actions for damages for any emotional harm and distress caused. As the new law is unrelated to the Privacy Act, the defences and exemptions in that Act do not apply, although a defence of public interest may be available.

It is too early to say what the national effect will be, but it is a fair guess that Australia is moving fairly decisively, rather than inching its way, toward a tort of privacy, without until now very much public discussion of desirable privacy boundaries. And without very much awareness in the print press that, as in the Douglas v Hello Ltd case where reference was made to the defendants having breached the Code of the Press Complaints Commission, we now need to consider what the print press wants as processes and approaches to protect a continuing free flow of information.

A sub-set of privacy questions concerns the rules that ought to apply to celebrities. Although Naomi Campbell won her case, and although in the end the comments did not affect the outcome of the Douglas case, the judge commented:

Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. 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. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. 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.

In summary, new legal jeopardy for newspapers is being developed in common law. Moreover, newspapers may also need to take account of a related judicial comment in the Grosse v Purvis case, to the effect that there is also a tort of harassment that can potentially be utilised.

An allied issue concerns the privacy rights over the use of their image of celebrities and public individuals. Sports people, at least, and some other celebrities are attractive to sponsors. They have an ability to make money by selling rights to use of their image. Even now there can easily be conflict over the commercial use of those images, as is apparently the case in the West Indies, with the Cricket Board being tied up with one sponsor and individual players being directly contracted to competitors.

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Implications for the press

If privacy rights are legislated how far will those rights affect current media practice? Will media reporting of public events that involve privately contracted celebrities have to be negotiated? Will individuals be able to refuse use of their image in print if the images are unflattering, as in a dropped catch or a poor play? There are already suggestions that the publication of the image of a person or persons caught in a media melee outside a court might in future be subject to the explicit permission of the individuals involved.

So too, use of digitally enhanced images in the print press have already become the subject of threats of court action. The Chief Minister of the ACT claimed that a Canberra Times front page picture, transposing his head onto a body in a doctor's uniform, as part of a story of inadequate medical services, seriously defamed him, despite a small print acknowledgement that the picture had been digitally altered. (The matter is currently not before the courts because the Press Council has agreed to deal with the matter as a complaint.) The old adages, 'a picture never lies', or, 'a picture is worth a thousand words' should be replaced with a new formulation, 'a picture almost always lies', but the question remains, what will be the legal limits?

Here in Australia we are also having an interesting debate about reform of defamation law. At present there are six state and two territory jurisdictions in which an individual may sue for defamation, with differences in the law of each. Some haven't been changed much since being imported from England a long time ago. Newspapers such as The Australian, and many magazines, are sold in most jurisdictions, making it a sport for lawyers as to which jurisdiction offers promise of a favourable defamation outcome. Efforts to reform and modernise defamation law started in NSW three years ago. The effort, strongly mediated by the Press Council, has now been transformed into a national effort to achieve a modernised, harmonised, defamation law. At the moment, however, it looks rather like a football match, with the Commonwealth Attorney-General attempting to kick goals with his own views and the States insisting their own views should prevail. As a result the state and territories have agreed on a single set of principles for defamation law across their jurisdictions but the Commonwealth, which does not at this time have a defamation law, is threatening to introduce legislation that would conflict with the proposals agreed by the eight extant jurisdictions. Included in the Commonwealth's manifesto is the right to sue on behalf of deceased parties, effectively for breaches of privacy. Where that whole effort will go is still an open question, but extended privacy and further circumscription of freedom of the press is one possible outcome.

It would be wrong to characterise the present situation as a sweeping uniform move towards individual privacy having precedence over the public's right to be informed. As the quote from the speech of the then federal Attorney-General of 2000 indicates, freedom of the press is universally valued and frequently publicly endorsed. There is no constitutional protection it is true, and no chance of a constitutional referendum to establish such an inalienable right. But no political party would dare put forward an agenda for directly limiting press freedom.

New developments of the kind mentioned in this paper, on the other hand, may be just as effectively nibble away what Australians perceive as their established freedom of expression. Careless common law evolution or poorly thought-out statutes in protection of privacy could result in bigger bites. Newspapers already spend a lot of money defending defamation actions arising from individuals wishing to deter free speech. Careless extension of statute law, or over-enthusiastic judge-made common law, which may set up new privacy or harassment torts, with ill-defined parameters, could equally well harass the press and considerably hamper free speech, as well as adding to the costs of operating a media organisation.

Both the possible contents of any law (statute or common) relating to privacy and the process to be followed to achieve it need careful consideration and stringent definition. Publishers, journalists and readers need to be aware of these developments and the possibilities for the emergence in Australia (and similar democracies) of restrictive privacy regimes which will impinge on the ability of the public to be informed on matters of public interest and concern.

Ken McKinnon

Note: Much of the research for this paper was done by the Council's Policy Officer, Inez Ryan, and parts of the paper were written and edited by her and the Council's Executive Secretary, Jack R Herman.

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See also
Index of website material on privacy

Return to
Freedom of the Press overview