The Australian resumes war on a cause of action against privacy

Can't disagree with the headline "Democracy demands an informed public" in the Weekend Australian. But that doesn't go for some of the content in the opinion piece by John Hartigan- News Limited Chairman and CEO, and the lead figure of Australia's Right to Know - particularly points he makes about privacy and the media in arguing against the Australian Law Reform Commission (ALRC 108) proposal for a statutory cause of action for breach of privacy.

Just on the subject of the importance of an informed public you wouldn't know from reading the article that the proposal is for a general cause of action and is not specifically aimed at the media; that the cause of action would be framed only to apply to serious breaches; or that a plaintiff would have to satisfy the court before getting to first base that the public interest in privacy outweighs other public interests including the interests in informing the public about matters of public concern and in allowing freedom of expression.

As to Hartigan's arguments, the claim that the proposal "ignores the fact that the current media privacy framework is effective and working well" is plain head in the sand stuff. There are many identified gaps and flaws in the framework as pointed out in the ALRC Discussion Paper (DP 72, Chapter 38) in 2007-it's a self-regulatory model with all that goes with that; a media organisation has an exemption from the Privacy Act if publicly committed to observe privacy standards but there are no criteria for or independent assessment of the standards; and different codes apply to the various media sectors with big variations in what they cover, and in enforcability, with some schemes such as the Australian Press Council complaints process for print media having no power to penalise or make an order against a publication.

Broad and positive sounding commitments such as in the Media Entertainment and Arts Alliance Code of Ethics, which only applies in any event to members, to "respect private grief and personal privacy" just don't square with what we see and hear.To take just two recent examples: the publication of a full frontal front page photo of a family taken as they heard the news of death of a family member in the recent bushfires for the first time; or another on Saturday of the two small children of a murderer convicted last week, one wearing a school uniform on the way to school. Media Watch(16 February) drew attention to other instances of inappropriate media intrusions on victims during the Victorian bush fire coverage but few apart from The Australian's own Gary Hughes who lost everything in the fires and has written about his experiences are likely to complain.

All this is before we even start on commercial television's current affairs programs and their "knock the door down" approach to getting the story, or News Limited papers and the television networks running allegedly false photos claimed to be of perennial political candidate Pauline Hanson nude and taken by an ex boyfriend almost 40 years ago-it's see you in court on that one today.

Hartigan is also off the mark in seeking to support his argument by claiming "there are very few complaints, investigations and breach findings against the media for breaches of privacy" as, if true, there could be all sorts of reasons for this.For example the Australian Communications and Media Authority only considers complaints that have not been satisfactorily resolved by broadcasters and there is no publicly available information about the number and outcome of those first order complaints. And those directly affected will be restrained by the knowledge that complaining about a breach of privacy may compound the invasion that has already occurred. Some might agree with the Australian Privacy Foundation that there are relatively few complaints because there is a widely held public perception that when it comes to privacy the media are effectively above the law.

Today Legal Affairs Editor Chris Merritt follows up the Hartigan article with "Free speech,open government? What a laugh" labelling the ALRC Report, in its entirety apparently, as "outrageous" and scorning the Government for its silence on the cause of action proposal-in fact it's for attention in the second stage of consideration of the recommendations after privacy principles have been settled. (Merritt strangely gives the Government a tick for runs on the board on Freedom of Information reform, most of us wouldn't, but a hopeless score on the few other indicators of free speech mentioned. He dismisses the Dreyfus Report on Whistleblower protection as "flaccid" and says it supports existing secrecy laws, whereas it said nothing on the subject, leaving it to the ALRC's current review of the secrecy statute book.)

The Australian, as it did when the ALRC report was released last August, has pushed way out ahead of most others in the media, with over the top claims and no semblance of balanced analysis, in the same vein as commentary published at that time - see here, here and here. I'm yet to see anyone else use "outrageous" to describe a proposal that our law should recognise a right contained in the International Covenant on Civil and Political Rights, the US Constitution and the laws of most governments in Europe. Hartigan's right in suggesting in an ideal world that we should have a constitutional right to free speech but while we work on that one other necessary changes in our laws shouldn't be put, possibly forever, in the too hard bin.

As mentioned here previously the media might be well advised to try to be part of crafting a reasonable statement of a cause of action- there may be room for sensible tweaking of what has been proposed- rather than leave it to the courts over time, as is likely, to incorporate into common law the rights in Article 17 of the Covenant.

For the record, I was Deputy Chair of the Independent Audit of Free Speech in Australia prepared for Australia's Right to Know but have had no involvement with the coalition since November 2007.