Privacy, the media and Terry's own goal

Michael Pelly in The Australian Legal Affairs on Friday took some comfort from England soccer (now former) captain John Terry's failure in court to stop publication of an affair with a team mate's ex, suggesting the decision of High Court Justice Tugendhat would have Australian media lawyers smiling. Pelly also predicted with confidence that Attorney General Mc Clelland won't be hurrying in this election year to do anything on the ALRC recommendation of a cause of action for breach of privacy, or for that matter act on a raft of other controversial  issues on his desk - "Too many people to upset for too little gain."

Pelly's probably right on that but a couple of comments about the article and the decision.

Pelly said the "...mere thought of (a move in the direction of a privacy cause of action) gave the media apoplexy" when it emerged from the ALRC.

More accurately the suggestion gave News Limited executives and outlets, particularly The Australian Legal Affairs Editor Chris Merritt, who at the time used the words "outrageous" and "alarming," apoplexy. From memory experienced and respected commentators Mark Day, writing in The Australian Media Affairs, Jack Waterford in the Canberra Times, Matthew Ricketson then with The Age, and Richard Ackland in the Sydney Morning Herald were  some who showed no such sign, suggesting the media needed to look closely at the proposal. And Mark Scott Managing Director of the ABC suggested the media get its house in order on privacy and negotiate something sensible rather than leave the issue for development in the courts over time.

In his decision Justice Tugendhat said the main concern appeared to be Terry's interest in protection of reputation, and the application was an attempt to prevent damage being caused to his lucrative sponsorship deals, for which an appropriate remedy lay in damages rather than prior restraint. On privacy and freedom of speech, in two sentences that don't appear in Pelly's article, the judge  summarised: (emphasis added)

"Freedom to live as one chooses is one of the most valuable freedoms. But so is the freedom to criticise - within the limits of the law - the conduct of other members of society as being socially harmful, or wrong." 

So while a significant decision, and welcomed by many in the media, the basic premise in the UK, and proposed here in the context of a cause of action, is that the law requires a balance between these competing principles.

The main interest in the decision in the UK has been what it means for the future of the "super-injunction" (an injunction that prevents even publication of the existence of the order)  which have apparently become far more frequent in the UK courts.The judge rejected continuation of the super-injunction previously granted to Terry on the grounds it would be futile as Twitter was full of news about the affair and anyone with a computer could access it instantly. In the circumstances, the super-injunction was neither necessary nor proportionate.

According to this analysis by  Lee and Thomson  "this decision in no way changes the law and injunctive relief remains available to protect privacy in appropriate circumstances."

However some pundits are reflecting on the decision and media conduct. Peter Preston, columnist with the Guardian, and for 20 years the editor, thinks affirmation of press freedom in the judgment is a good thing, but is concerned some media behaviour in the  days since suggest some are pursuing the humiliation of minor figures for the minor thrill of it in the name of a noble cause.  The Times legal manager, while railing against current privacy laws is prepared to acknowledge even celebrities are entitled to a few private moments:

The only sensible way forward is to create a new, narrowly defined offence of trespass on someone else’s property with the intention of invading their privacy and obtaining through long-lens photography or audio equipment private information or material without their consent.

In Australia there is little public sign of media introspection on the issues. Pelly was simply gung ho about how the decision would help if a celebrity here sued for breach of privacy. More generally News Limited boss and Australia's Right to Know leader John Hartigan hasn't said anything publicly since his statement last year that the media framework for privacy works well. There are no signs of any media take-up of  proposals by the Australian Privacy Foundation for a more balanced approach to the issue.