A right to privacy in public, sometimes

Mark Day in The Australian writes on two recent instances of media reporting on events that happened in public and puts the view:" no reasonable case can be made against the media’s right to film or report on events in public." But Day agrees that in the case concerning Channel Ten, its treatment of the person was "over the top, unnecessary, insensitive and unfair", shortcomings best addressed in Day's opinion by newsroom education rather than what he sees as an increased interest in tighter regulation by the Australian Communications and Media Authority(ACMA).

However Day himself- a welcome media voice for calm consideration of the ALRC recommendation a year ago for a statutory cause of action for breach of privacy- is a little over the top in claiming a right to film or report on anything that takes place in public. As the ALRC (74.124-127) and the recent NSWLRC report (5.27-28) argue the test should be whether in a particular situation a person has a reasonable expectation of privacy, not on whether something happens in a public or private place.

The expectation in a public place in full view of everyone else would not be high in most cases, and even lower for public figures. But we can all imagine circumstances where ordinary folk such as a woman in distress outside an abortion clinic, or a couple under a blanket in an obscure corner of a park at sunset deserve some privacy, particularly from that fellow lurking nearby with a hidden camera. Or the privacy interests of the person in Channel Ten’s segment which showed a boat-owner who had lost both parents in an explosion " in close-up, sobbing on a hospital trolley as he was being wheeled to an ambulance. The filming took place on a public road, and in view of public spectators. In a 12-second segment, the man appears distraught, then agitated and angry at the presence of the news crew filming him. He is shown jumping off the trolley, strongly remonstrating with the crew, shouting abuse at them and forcefully throwing a towel in their direction."

Maybe a bit more training, as Day suggests is the answer, but patience is wearing thin. Higher standards and stronger incentives/disincentives may be warranted. Day quotes ACMA to the effect that "privacy guidelines attached to broadcasting codes of practice currently provide inadequate guidance on material that amounts to an “invasion of privacy” and planning to review them shortly. This is not just a problem for commercial television but for all media groups, as the ALRC's found last year. Day got it right on this one: "The issue of privacy is one of the media’s more vexed questions."

Some aspects of the NSWLRC report's discussion of this issue are couched in broader terms than many would accept, for example:

"While persons who appear in a published photograph of a crowd scene in a public place or appear incidentally in a photograph of that place cannot complain of an invasion of their privacy, they will be able to do so where the public place simply formed the background of the photograph and they constitute the real subject matter of the photograph."

And the following needs qualification if it's suggesting that information in every public register can or should retain some privacy character.

"We agree with the Hong Kong Law Reform Commission that the law should take account of the “practical obscurity” of personal information that is held in public registries or that has already been disclosed. Therefore, the fact that information has already been disclosed or is publicly available should not of itself preclude a plaintiff from bringing a cause of action for invasion of privacy, a proposition supported in some submissions."