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Friday, March 20, 2009

The inside story on the " publish' decision.

The detail of some of this may be way beyond your level of interest but Chris Merritt Legal Affairs Editor of The Australian today in" When public interest and privacy collide in Pauline Hanson nude photo case" provides a platform for Daily Telegraph Editor Neil Breen to tell us about the decision-making process to publish, what steps were taken to check the legitimacy of the photos and why he felt the public interest justified publication. On the latter point his views are an advance on the "how many papers were sold" test offered by the Deputy Editor earlier in the week. Of course the public interest considerations mentioned pre-suppose that the photos are of Pauline Hanson. Breen concedes there is now "extreme doubt" about this.

I take another view about whether the good order of society and the well-being of its members is advanced by publication of highly personal photographs
taken 30 odd years ago long before any involvement in public life, showing someone said with certainty to be now a political candidate in a state of undress, where the photos raise no issue about character, honesty, credentials for office or any inconsistency with public claims.There are of course other views out there apart from mine and Breen's

Merritt reports:

"Breen's decision to publish has infuriated Ms Hanson - who says the pictures show somebody else - and given her an unlikely supporter in Jonathan Holmes of the ABC's Media Watch.Holmes, like his predecessor Monica Attard, believes the media needs to be subjected to a new privacy law. Along with privacy proponent Peter Timmins, Holmes was quick to use the Hanson pictures in their campaign."

My original foray into this on Monday was in response to what I saw as exaggerated claims by News Ltd boss John Hartigan in an article published on Saturday which seemed to be part of a News Ltd campaign against a statutory cause of action for breach of privacy. "Campaign" seemed the right word to describe what we've seen in News publications last year when the proposal surfaced and when within two days of the Hartigan article Merritt labelled the Australian Law Reform Commission report "outrageous" a word no-one else has used in any of the discussions about the complex pros and cons of the proposal.The"Hanson" photos were one point in my comment in response to Hartigan's claim that the current" media- privacy framework " is working well, and that there is no justification for change.

As to Merritt's description of me as a "privacy proponent" I'll leave it to you to decide in the light of three years of published opinions here and about thirty in and around these issues, whether Merritt or his colleague Nicola Berkovic writing in The Australian on Monday was more accurate when she generously described me as "an expert on FOI and privacy law."

I've never talked to Jonathon Holmes but admire what he does on Media Watch. As to our "joint campaign for an actionable right to privacy, here is what I said on Monday:

"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."

Some others such as Clayton Utz share this view.

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